Public Bill Committee

[Mr. Edward O'Hara in the Chair]

Clauses 39 to 41 ordered to stand part of the Bill.

Clause 42

Working with other ombudsmen etc.

Amendments made: No. 298, in clause 42, page 30, line 11, leave out from beginning of line to ‘this’ in line 12 and insert
‘The power under section 123(2)(c) to make consequential provision in an order under subsection (8) includes power to modify’.
No. 299, in clause 42, page 30, line 13, at end insert ‘, whenever passed or made’.—[Maria Eagle.]

Question proposed, That the clause, as amended, stand part of the Bill.

David Heath: I welcome you back, Mr. O’Hara. I also welcome the Conservative Opposition and Government Members. I have just a couple of questions on clause 42, which relate to listed persons under subsection (6). I appreciate that this list is capable of extension, but in the first instance I want to ask whether the Minister considered the view that the Police Complaints Authority should be part of the list. If she did, why did she reject that view? It seems a very obvious body that should be listed for this degree of co-operation and the potential to carry out joint investigations, particularly in the context of our consideration this morning. I am genuinely surprised that the Police Complaints Authority is not listed. It looks to me as though it may be an omission.
I shall be more diffident in making my next suggestion. I am sure that I will display my ignorance here, but I am not sure what the interface might be for those in detention with the military police authorities and whether the Provost Marshal should be listed, because there will be circumstances in which civilians are apprehended through the military police, or in which a prisoner who has been dealt with through a court martial might be transferred to the civilian estate, or in which a service person is before a civilian court. I can conceive of circumstances in which the Provost Marshal or a complaints body that might apply in the context of the military system—I am not sure that one exists at the moment, but one might exist of which I am not aware—should be a listed body, as well.
I wonder who would be the appropriate body in the case of a similar position in Scotland. The Scottish public services ombudsman is listed, but nobody is who has a direct remit in the investigation of matters within the penal system in Scotland. I do not know enough about Scots law and Scottish arrangements to know who that would be—whether the issue would be directly investigated by the Advocate-General or under the Advocate-General’s supervision, or whether it would be a matter for a procurator fiscal. There may well be occasions when a joint investigation or the sharing of data and, potentially, a joint report, might be appropriate. I would be grateful if the Minister commented on those thoughts.

Maria Eagle: May I join the hon. Gentleman in welcoming you back to the Chair, Mr. O’Hara? We missed you on Tuesday.

Edward O'Hara: I missed you, too.

Maria Eagle: Exactly. We are glad that you missed us too, Mr. O’Hara, but Mr. Cook, who stepped into the breech, did a magnificent job.
I shall try to deal with the points made by the hon. Member for Somerton and Frome. The clause is about provisions for co-operation and joint working between the commissioner and the other main statutory public sector ombudsmen in England and Wales, which is why it focuses on how they will work together to ensure that there is no unhelpful overlap between jurisdictions, as we discussed, and that we have smooth working together rather than muddle. The co-operation functions described in the clause reflect and reciprocate the ombudsmen’s needs as they themselves have expressed, and the measures do not create new powers or duties for ombudsmen to consult one another. We hope that that is the best way to ensure and enable smooth joint working, and that the measure works in the way that we want it to.
We are hoping to include the Independent Police Complaints Commission by order at commencement. Obviously, there are ongoing discussions about the way in which that commission should fit in. It is not technically an ombudsman in the normal sense, but clearly it should fit into the framework. The IPCC has now agreed that it ought to be involved.
In Scotland, the Lord Advocate and procurator fiscal are generally responsible for investigating deaths, and the clause does not change that. On the deaths remit, as it were—it is a horrible phrase that becomes worse the more often one hears it, but it is helpful shorthand—the commissioner will have a limited role in investigating complaints in Scotland. Essentially and in practice, he will investigate complaints from detainees in Dungavel immigration removal centre. We believe that the arrangements will be suitable and correct in terms of the listings in the clause.
I am not in a position to deal in detail with the hon. Gentleman’s point regarding the extent to which it might be necessary to list the military authorities. Obviously, they are not involved, as far as I understand, in the public service ombudsmen’s current remit. It is possible, subject to discussions, that some future arrangement could be made that involved them, but we are not at that point yet. Any such discussions would doubtless in part deal with ensuring that the relevant official or complaints arrangement was placed on the statute at the relevant time. Such a situation is not envisaged at present, but it is not ruled out for the future.

David Heath: I am grateful to the Minister and I do not wish to pursue the matter further. I understand from what she said that the IPCC was to be added to the Bill, rather than adding it by order in future, which seems sensible, if only for the sake of efficiency. The clause title mentions “ombudsmen etc.”, which I presume was intended to accommodate exactly such circumstances.

Maria Eagle: I am certainly happy to look at the practicalities of the hon. Gentleman’s suggestion and to come back to the Committee on the matter. I understand his point, but I hope that that convinces him.

Clause 42, as amended, ordered to stand part of the Bill.

Clause 43 ordered to stand part of the Bill.

Clause 44

Disclosure of information etc.

Maria Eagle: I beg to move amendment No. 300, in clause 44, page 31, line 41, leave out subsection (8).

Edward O'Hara: With this, it will be convenient to discuss Government amendment No. 301.

Maria Eagle: This is an extremely minor drafting change to remove the provision in subsection (8), on notification to the police and other authorities, from its incorrect location in clause 44, which is really about the disclosure of protected information—it is as simple as that. The subsection properly belongs in clause 46 and amendments Nos. 300 and 301 would put it there.

Edward Garnier: I am happy that what I am about to say will conclude our deliberations on clauses 44 to 46. I would like to ask the Minister, using the excuse of these amendments, about the power in clause 45(1) for the Secretary of State to
“give a notice to the Commissioner”
regarding
“the disclosure of—
(a) any document or information specified in the notice, or
(b) any description of document or information so specified”.
Is that decision by the Secretary of State challengeable, or does the Secretary of State’s view that the disclosure of the document would
“prejudice national security or would otherwise be contrary to the public interest”
mean that the decision cannot be challenged, and that that would be it? I have not expressed my question very lucidly, but I hope that the Minister understands what I am trying to ask. Is the Secretary of State’s opinion unchallengeable, or can the courts review that decision?

Maria Eagle: As far as I am aware, the normal rules would apply. A Secretary of State’s judgment is always challengeable in the courts, on the basis of judicial review, unless we were looking at something like certified public interests. My understanding is that such a decision is not intended to be out of the normal run of challengeable decisions; it ought to be challengeable in all the normal ways. I hope that that reassures the hon. and learned Gentleman. There is certainly no intention in this clause to have any special rules or to suggest that the Secretary of State’s decision is final and cannot be challenged.

Edward Garnier: I do not want to hold up the Committee’s deliberations. I therefore wonder whether the Minister could write to me about that matter and circulate the letter to the Chairman and to other members of the Committee, so that there is clarity about the intention behind the measure.

Maria Eagle: I am happy to do so.

Amendment agreed to.

Clause 44, as amended, ordered to stand part of the Bill.

Clause 45 ordered to stand part of the Bill.

Clause 46

Notification of matters of potential concern to the police or other authorities

Amendment made: No. 301, in clause 46, page 32, line 27, at end add—
‘(3) Information obtained from a listed person (within the meaning of section 42) must not be notified under this section unless the Commissioner has consulted the listed person.’.—[Maria Eagle.]

Clause 46, as amended, ordered to stand part of the Bill.

Clauses 47 and 48 ordered to stand part of the Bill.

Schedule 9 agreed to.

Clause 49 ordered to stand part of the Bill.

Clause 50

Interpretation of Part 4

Amendments made: No. 302, in clause 50, page 33, line 37, leave out from ‘means’ to end of line 38 and insert
‘any prison, young offender institution, secure training centre or approved premises in England and Wales’.
No. 303, in clause 50, page 34, leave out line 2 and insert—
‘“eligible”, in relation to a complaint or part of a complaint, means eligible for the purposes of this Part in accordance with section 30 (and cognate expressions are to be construed accordingly);’.
No. 304, in clause 50, page 34, line 32, leave out subsection (3) and insert —
‘(3) A reference in any provision of this Part to the High Court is—
‘(a) in so far as the provision extends to England and Wales only, a reference to the High Court of England and Wales; and
(b) in so far as the provision extends to England and Wales, Scotland and Northern Ireland, a reference to the High Court of England and Wales, the Court of Session or the High Court of Northern Ireland, as the case may require.’.
No. 305, in clause 50, page 34, line 38, at end insert—
‘( ) Any power under this Part to make an order modifying a provision of any legislation includes power to amend, repeal or revoke that provision.’.—[Maria Eagle.]

Clause 50, as amended, ordered to stand part of the Bill.

Schedule 10

Controlling authorities

Amendment made: No. 317, in schedule 10, page 164, line 19, at end insert ‘in England and Wales’.—[Maria Eagle.]

Edward Garnier: I beg to move amendment No. 157, in schedule 10, page 165, line 2, at end add—
‘A local authority in any part of the United Kingdom which owns or manages secure accommodation.’.
This is a short amendment, which adds a further controlling authority. One sees from clause 50 that, in part 4 of the Bill, a controlling authority is defined as
“(a) a person listed in schedule 10; or (b) any person of a description specified in an order made by the Secretary of State”.
The list of persons in schedule 10 includes the most obvious sorts of people that one would expect. For this purpose, “person” means not only human beings but legal personalities. I propose to add to that list.
The Minister may well persuade me that a local authority that controls or manages secure accommodation is already covered by the listed persons, or that my adding of such authorities would be the result of a misunderstanding of the definition of controlling authorities and its purpose in clause 50. Local authorities own and manage secure accommodation, and the commissioner ought to have an eye on such things, subject to the children’s commissioner or the children’s ombudsman—one of whom we discussed briefly this morning—having a parallel or distinct jurisdiction.

Maria Eagle: It is the local safeguarding children’s boards of local authorities that have jurisdiction in respect of those children’s homes.

Edward Garnier: If that is the answer to my question, perhaps we do not need to press the amendment much further. However, I would be grateful for an explanation of the relationship between local authorities that own and manage secure accommodation units, the commissioner, and the controlling authorities listed in schedule 10.

Maria Eagle: I will do my best to persuade the hon. Gentleman that it is not necessary to add local authorities as controlling authorities. However, I can say that, in general, we will have to consider suggestions for additions to the list. Before making any commitments, we must look at the matter in consultation with the prisons and probation ombudsman, and consider whether the body in question is one with which the commissioner may need to deal, and whether it would be appropriate to impose a duty of response on them.
Schedule 10 provides a list of bodies who are controlling authorities as defined in clause 50 for the purposes of the legislation and it includes those who are currently listed. The amendment would add local authorities who are owners or managers of secure accommodation in any part of the UK to the list of controlling authorities. It would give those local authorities the additional responsibilities of a controlling authority. That will come into play in four areas of part 4.
Under clause 31, a controlling authority is the body that is considered by the commissioner
“to have the most direct responsibility for the matters covered by the complaint”.
It must normally be given a reasonable opportunity to deal with that complaint before the commissioner takes any action. Under clause 34,
“The Commissioner may make recommendations to a controlling authority about any matter arising from a complaint”,
and the controlling authority must respond in writing to the commissioner within 28 days, setting out what it proposes to do.
Under clause 36, the commissioner must report in writing on the outcome of the death investigation to the controlling authority that appears to have most direct responsibility over the matters covered in the investigation. He can make recommendations to a controlling authority about any other matter arising from his investigation. Under clause 46, the commissioner may notify the controlling authority if, while performing any functions, he forms the opinion
“that a controlling authority should, as a matter of urgency, take action in relation to any matter”
that he might have come across during the investigation.
Schedule 10 lists all the bodies whose responsibilities for matters within the commissioner’s remit suggest that he may need to engage with them in those four different ways. All the controlling authorities included at present are those whose activities are directly covered by the commissioner’s remit.
Local authorities have control over secure children’s homes which provide accommodation for children placed by local authorities on welfare grounds. However, those placed by the Youth Justice Board fall outside this remit and that is why the local authorities are not there at present. Because of the links between secure children’s homes, secure training centres and youth offending institutions, there may be some occasions in which it would be useful for the commissioner to make recommendations for secure children’s homes. That can be done without adding them to the list of controlling authorities, as we do not believe that that is necessary at this time.
The issue is about the purpose of schedule 10, and the fact that there are other complaints arrangements outside of this in relation to secure children’s homes. That is why they are not there—they do not need to be. However, it is not something that we want to be pedantic about. Should the remit change to include complaints and secure children’s homes, it might be sensible to put local authorities into schedule 10, but as the Bill stands it is not necessary. I hope that that will satisfy the hon. and learned Gentleman, with respect to the amendment.

Edward Garnier: I am grateful to the Minister for setting out her understanding of the purpose behind schedule 10 and clause 50. Given her undertaking to keep the matter under review and to change the schedule if necessary, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Schedule 10, as amended, agreed to.

Clause 51

Power to modify certain provisions of Part 4

Amendments made: No. 306, in clause 51, page 35, line 25, at end insert —
‘(7A) Nothing in this section authorises an order under this section to make provision that would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.’.
No. 307, in clause 51, page 35, line 26, leave out from beginning of line to ‘subordinate’ in line 27 and insert
‘The power under section 123(2)(c) to make consequential provision in an order under this section includes power to modify this or any other Act or any’.—[Maria Eagle.]

Clause 51, as amended, ordered to stand part of the Bill.

Clause 52

Power to confer new functions on Commissioner

Amendments made: No. 308, in clause 52, page 35, line 36, at end insert —
‘(1A) Nothing in this section authorises an order under this section to make provision that would be within the legislative competence of the Scottish Parliament if it were contained in an Act of that Parliament.’.
No. 309, in clause 52, page 35, line 37, leave out from beginning of line to ‘subordinate’ in line 38 and insert
‘The power under section 123(2)(c) to make consequential provision in an order under this section includes power to modify this or any other Act or any’.—[Maria Eagle.]

Clause 52, as amended, ordered to stand part of the Bill

Clause 53

Alternatives to prosecutions for offenders under 18

Question proposed, That the clause stand part of the Bill.

David Burrowes: I welcome you back to the Chair, Mr. O’Hara. I refer to the principle behind the extension of conditional cautioning to 16 and 17-year-olds, while understanding the logical distinction from what is in place for 18-year-olds. No doubt we want to deal with particular circumstances concerning young people and whether it is appropriate for the regime that is in place for adults to apply to them.
Before we move to schedule 11, I want to consider alternative ways in which to deal with the process of youth conditional cautions. What evidence does the generic Minister have for the supposed success of conditional cautioning? Is there real evidence to justify its extension? It is often tempting to see what happens at the adult court and say, “Well, what is good for the adults should be good for the youths.” I should like to see on an evidence base whether conditional cautioning has worked. Obviously, “Alternatives to prosecution”, the clause heading, is the point of conditional cautioning. No doubt all members of the Committee are united in wanting alternatives to prosecution in appropriate cases and to divert young offenders away from the criminal justice system.
I am concerned whether alternatives to prosecution under the clause are, in fact, an alternative to justice. The worry that is borne out by practice in many ways is whether justice is not properly delivered in those many cases that are being extended by the Government in respect of pre-court disposals and if that is seen in the realms of conditional cautioning or fixed penalty notices. The trend of particular concern to the Magistrates Association and practitioners is that the appropriateness of such penalties should not be done down and dealt with before matters reach court.
No doubt the Government’s mantra is to bring more people to justice and they are keen to ensure that targets are fulfilled and that disposals happen. That might be a fast track to dispose of different offences, albeit low-level offences, but is it a short cut that diverts away from justice? I invite the Minister to explain the principles behind conditional cautioning and to say whether it is appropriate to extend it to the arena of 17 and 18-year-olds.
More often than not conditional cautioning comes within the province of the custody officer, albeit it with reference to the Crown Prosecution Service, to decide on the appropriateness of conditional cautioning. However, in practice, it is very much at the behest and call of the custody officer and the police to decide within a range of areas how they wish to impose certain conditions. I want to know whether the conditions that are attached are always appropriate to the particular penalty and offender.
There is also a concern about resources. It is one thing to have a regime of conditional cautioning and to extend it to 16 and 17-year-olds, but whether the resources will be in place properly to apply those conditions is another matter. No doubt, we will talk about that and concur to some extent when looking at areas of rehabilitation and restoration programmes. The argument that will be made by the Minister of State to justify conditional cautioning and the rationale behind it—to divert young offenders from the criminal justice system and involve them in an early intervention in restorative and rehabilitative programmes—might hold little weight if the funding and resources to go hand in hand with such a proposal are not provided. In practice, one is left with conditions being tacked to cautions, which have little to do with any real rehabilitation or restoration, but which seek to circumvent the young offender’s liberty in certain areas. I ask the Minister to confirm the exact principle and rationale behind clause 53, and to tell the Committee about the evidence that justifies extending the practice to 16 and 17-year-olds, and whether the required resources are available.

David Heath: I want to echo some of the concerns expressed by the hon. Member for Enfield, Southgate. All of us can see merit in pre-court disposals and diversion away from prosecution—I do not think that there is any doubt about that—but there is also concern about how that works in practice, and whether the same considerations are given when a conditional caution is applied, and the degree to which it simply removes a level of responsibility from the prosecutorial and penal systems in dealing effectively with offenders.
I would like to raise a separate issue, and I am genuinely interested in the Minster’s response. Why were the ages of 16 and 17 chosen as being appropriate for the conditional caution, and not those who are under-18 and younger than 16? On the face of it, the measure introduces a new anomaly, and had I tabled an amendment at an earlier stage in the proceedings, it might not have been starred and it might have been selected for debate at a subsequent sitting, where we might have explored the matter more fully.
The proposal creates a potential new anomaly in that a 15-year-old with an identical series of circumstances to a 16-year-old would not be eligible for a youth conditional caution and therefore a prosecution would be required to achieve the same objective. The arguments of diversion from prosecution that apply to a 16-year-old would not apply to a 15-year-old. It is not inconceivable, in fact it is almost certain that there will be circumstances in which several youths are involved in an unlawful activity and they will have to have different disposals according to which side of their 16th birthday they are; one will lead to a 15-year-old appearing in court and the other will result in a 16-year-old being given a youth conditional caution.
I am interested to know why the Government have taken the view that this should apply only to 16 and 17-year-olds. If the answer is that it is considered that only a 16 to 17-year-old would have sufficient maturity to understand a youth conditional caution, that raises a different question, about the fact that many 16-year-olds might not have that maturity, and about whether the disposal is effective and appropriate in that case. Is it perhaps an adult disposal, being used for young people; and is that appropriate? What is the reason for the cut-off point at 16? What are the arguments for it? Will the Minister explain why the Government have taken the view that they have on the magical element of the 16th birthday, which makes the disposal appropriate then, but not for a younger child?

David Hanson: I welcome you back to the Chair for the afternoon sitting, Mr.O’Hara. I am grateful to the hon. Members for Enfield, Southgate and for Somerton and Frome for raising again the issues that they have raised today. I hope that at the end of the discussion clause 53 will stand part of the Bill.
The youth conditional caution is, as I know the hon. Member for Enfield, Southgate is aware, designed as a disposal to prevent young people from going before the court for offences that are deemed not to be sufficiently serious. We want to extend the range of out-of-court options to avoid their going to court. The benefit for a young person would be in having a matter dealt with much more speedily than by a court referral; from my perspective the approach would improve community confidence in the youth justice system.
The hon. Gentleman will know about several recent cases in which effectively minor offences have led to court appearances by young people. The youth conditional caution is designed to try to avoid that scenario, by providing a better way of dealing with several minor incidents, so that young people who have exhausted existing out-of-court disposals and who then commit low-level offences can be kept out of court. The principle is to try to prevent young people from going to court.
The hon. Gentlemen have asked three questions about the broad principle of youth conditional cautions. First they asked whether and how we have evaluated the use of the cautions for 18-year-olds. Secondly they asked about costs and savings implications. Thirdly, they asked the valid question why, if a 16 or 17-year-old could be liable under the Bill for a youth conditional caution, a 15-year-old could not also face that prospect. I shall try to answer those three questions, rather than to go into detail about youth conditional cautions, because I suspect that hon. Members know the principle, and there is not much point in my going over it.
We have undertaken an evaluation—the details of which have not yet been published, so I hope that the hon. Gentleman will take what I say on trust—which we commissioned in 13 early implementation areas in six criminal justice areas in England and Wales, to provide evidence to inform our national roll-out. There was an evaluation from December 2004 to November 2005, and I hope to be able to publish its results shortly. The evaluation shows a positive impact from youth conditional cautions for 18-year-olds. I am looking forward to publication taking place shortly. I am examining the results; but there is value in what has been done.

David Burrowes: I do take on trust the positive results from the evaluation, although it would obviously have been helpful, and in many ways ideal, if it had been published before the Government went ahead with legislating on extending youth conditional cautioning. I wonder whether the evaluation takes account of the concerns that arise about victims and their often limited involvement in the conditional caution process compared with a court disposal. There is some concern about whether victims see justice happening, and whether they are involved in compensation or other restorative approaches; they might have a better chance of obtaining those forms of justice in a court disposal.

David Hanson: I accept in part what the hon. Gentleman says. It is important that victims should be central to the question of involvement in the criminal justice system. I accept that an element in the youth conditional cautions means that victims may not visibly be part of that through the Court Service. However, we should make no mistake about the fact that the youth conditional caution will, I hope, still be an effective way of preventing further crime. The purpose—I know that, deep down, the hon. Gentleman shares my view—is to ensure that those who have previously committed offences and who may have been reprimanded or given a warning and who may shortly reach the stage of being taken to court should be given some sort of warning or caution as a pre-court disposal. The intention is to intervene without taking the young people to court, which otherwise could be a potential beginning to an escalation of their court careers and their involvement in the criminal justice system.

David Burrowes: Another method at the court’s disposal for young offenders is the referral order. It is unique to young people and is not available to adults. It gives the courts the opportunity to divert the young offender from the criminal justice system. The advantage of the referral order is that the offender goes to court and, in that publicly accountable way, justice is seen to be done by the victim and the public—and by the offenders themselves. The referral order also has available a package that allows the direct involvement of the young offender team and other agencies, allowing them to provide the restorative and rehabilitative approach that would be put in place by the youth conditional caution but not in the formal way provided by the referral order.

David Hanson: The purpose of the conditional caution is to prevent young people from going to court. That is the purpose of the pre-court disposal. Our hope and wish is that that intervention will prevent future court appearances. I accept the potential issues that the hon. Gentleman has mentioned, but in the evaluations that have taken place so far, anecdotal evidence suggests that about 70 per cent. or 71 per cent. of victims are satisfied with how their cases were dealt with. That evidence is anecdotal, but I hope to publish it shortly. However, there is merit in examining the extension to 16 and 17-year-olds, provided for in clause 53, based on experience to date. It is done for a purpose, which is to intervene before individuals come to court. If their behaviour deteriorates and they fail the youth conditional caution system, they will come before the court in due course, and all the issues that the hon. Gentleman mentioned will come about.
The hon. Gentleman asked about the costs of the youth conditional caution. If he examines paragraph 726 of the explanatory notes, he will see that we anticipate that it will result in a saving for the courts. On current projections, it will be £98,000 for the Court Service, £68,000 for the police and potentially more than £300,000 for the youth offending team in 2008-09, 2009-10 and 2010-11. There will be a financial saving, but I emphasise that it is not being done for the purpose of saving resources. It is being done because we hope that pre-court interventions will help young people to face up to their behaviour, and not to embark on a long career in court.
The hon. Member for Somerton and Frome made an extremely valid point. We have conditional cautions for 18-year-olds, and the Bill will extend them to 16 and 17-year-olds. It is valid to ask why we are not doing it for 10 to 16-year-olds. It is a potential anomaly. I do not rule out considering that at some point, but I want to take things at a pace that ensures that things are done properly. I am happy to examine the question; there may be merit in considering an age of criminal responsibility of 10. It would involve consideration of a number of details in a wider consultation, which I may consider. We would need to examine not just the individual’s responsibility but also the important issue of parental responsibility. For those children aged between 10 and 15, there may well be greater parental involvement than there is for those who are aged 16 or 17, and indeed for those who are 18, the age for the current operation of cautions.
We need to examine the needs of parents and carers, administrative procedures and the resource implications, but I will not rule out that possibility of extending the age at which conditional cautions would apply. The aim at the moment is to extend that measure to areas where there is potentially a high level of offending among 16 and 17-year-olds. As hon. Members know, this measure is designed to be a pre-court diversion to ensure that we try to take action before escalating into court in due course. I hope that both hon. Gentlemen will welcome the measure, I hope that I have been able to offer some answers to the questions that were put and I commend the clause to the Committee.

Clause 53 ordered to stand part of the Bill.

Schedule 11

Alternatives to prosecution for persons under 18

Harry Cohen: I beg to move amendment No. 183, in schedule 11, page 165, line 38, leave out ‘more’ and insert ‘both’.

Edward O'Hara: With this, it will be convenient to discuss amendment No. 142, in schedule 11, page 166, leave out line 2.

Harry Cohen: This is a probing amendment, to try to get some information from the Minister. My source is Liberty, which has expressed concern that cautions will be imposed on youth offenders with the objective of imposing punishment. Liberty says that there is a two-step system, which leads automatically to court if the young person offends again within two years. That system is in place under the Crime and Disorder Act 1998.
Liberty is worried that the measure
“acts as a funnel, channelling young people into the criminal justice system and removing the option of informal intervention as a way of tackling low-level offending. The result is growing numbers of young people embroiled in a criminal justice system which, once entered, is difficult to escape.”
Liberty and I acknowledge that, in clause 53, the Government are proposing to give police and prosecutors an alternative to reprimand and final warning, which will be done by extending the adult conditional caution scheme to 16 and 17-year-olds. However, Liberty says:
“We fear that, in practice, youth conditional cautions could operate as a short cut to punishment for 16 and 17-year-olds. Cautions are supposed to be an alternative to entering the criminal justice process”.
But, of course, 16 and 17-year-olds could become embroiled in the criminal justice process under this route and the two-tier system to which referred earlier. 
Liberty goes on to say:
“There is, however, a real danger that conditional cautions will be used as a short cut to punishment, intended for use in large numbers of cases.”
It would be interesting to hear what the Minister thinks about the number of cases that will be caught up in this process.
The concern is that the conditional cautions will be used for punishment. Under the Criminal Justice Act 2003, they could only impose conditions described as relating to rehabilitation and reparations, so there has been movement towards punishment. Is it the Minister’s intention that youth conditional cautions should be punitive? I want to refer to the representations of the Magistrates Association to an earlier clause on a related matter. It argued that it was
“contrary to the principles of justice for prosecutors and police to be able to impose punishment without the involvement of the judiciary.”
That represents a problem because we expect the courts to hand down punishment, and not for the police and the prosecutors to do so without reference to the court. The Magistrates Association argues that
“A democratic legal system ensures that an independent tribunal—the judiciary—should sentence and impose punishment, thus preventing bias from prosecutorial authorities.”
That is an important point in relation to youth conditional cautions because they put matters in the hands of the police and the prosecutors, instead of the court. I would be interested to hear what the Minister has to say on that aspect
Liberty’s final point in its representations to me concerned an unfairness. It says that
“in theory, a person does have a choice about whether to accept a caution”
but that in reality that could be very different, particularly for young people. They could have a fear of prosecution and so opt for the caution; they could have limited understanding of the options available or limited access to legal advice and so go for the caution when that might not be what they should opt for.
The second area on which there is a lack of clarity is the financial penalty that could be imposed following a caution. Liberty says that that could be unfair, resulting in a two-tier system of punishment. It is all right if a youngster or their parents can afford the fine, but a youngster who cannot afford it or does not have parents who can lend them the money would not be able to accept a caution with a fine attached to it. I have tabled the amendment because I think that it is worth getting an explanation from the Minister on those points.

David Burrowes: I am grateful for the opportunity to speak to the amendments and for the way in which the hon. Member for Leyton and Wanstead approached the debate. I want to restrict my comments to the issue of punishment being part of the youth offending regime in terms of youth conditional cautioning, rather than the issue of a penalty being imposed, which we can perhaps deal with when we discuss the next set of amendments.
The concern expressed by Liberty, but also by the Standing Committee for Youth Justice relates to the principle of punishment being part of the youth offending regime. I do not wish to deal with that debate; I wish to focus on whether punishment is appropriate for a pre-court disposal. The case has already been made that there has been movement. Initially, adult conditional cautions were limited to the purposes of rehabilitation or reparation, but the Police and Justice Act 2006 extended the scheme in order to allow punitive conditions. No doubt the case made by the Government is to extend the youth conditional cautioning to mirror the change within the Police and Justice Act 2006. However, the Government’s cross-departmental review of delivering simple, speedy summary justice in July 2006 said:
“We also intend to legislate for a youth version of the Conditional Caution to provide a robust intervention that requires the young person to take responsibility for formal action to make amends and tackle underlying problems in a supported way.”
No mention is made of the punitive element that is put in place under the Bill.
The Government’s review went on:
“We are working with the Youth Justice Board and the Association of Chief Police Officers to develop effective restorative interventions for first misdemeanours where a formal criminal justice response that forms part of an offender’s criminal record and is declarable to employers would be disproportionate. Getting a young person to apologise face to face and make amends is an important part of their learning. This is not about going soft on crime. A face to face apology is often quite difficult for a young person to do.”
Drawing on earlier arguments, the Government are making the case for extending youth conditional cautions on the back of debates about the restoration and rehabilitation areas of conditional cautioning. They are also slipping in the punitive element to mirror adult conditional cautioning. The most acute issue is that the schedule is a pre-court disposal. It is not so much a matter of whether punishment should be an explicit aim. That was dealt with perhaps not in the most grown up of fashions, nevertheless press releases do not have to be issued this week. We must consider whether punishment should be used and administered pre-court. Most members of the public would expect it to be administered in the proper setting of a court, and that it should receive its appropriate disposal in that manner.
The pre-court disposal in the schedule and youth conditional cautioning would be administered on the recommendation of a Crown Prosecution Service lawyer and then by the police. There would be no involvement or independent involvement of the estate arm. There may well not be legal representation, and it would be left to the police and the Crown Prosecution Service to deal with the different functions. They would be dealing with investigation and prosecution, and they would be the judge. All those three hats would be worn in the process of a pre-court disposal.
The amendment asks whether it is appropriate for punishment to be part of youth conditional cautioning, given that it is before the court. That matter seemed to be accepted earlier by the Government until it came to be mirrored by the adult cautioning process. They then seemed to veer back from their original intentions of conditional cautioning in their review of delivering simple, speedy summary justice. We now see in the Bill that they have mirrored the adult conditioning approach and have sought to include a punitive element. That has caused many members of the public, hon. Members and magistrates to worry that the Government’s wish to bring people to justice is focused particularly at the pre-court disposal and, in their effort to seek disposals, justice is very much denied. The fast track to punishment does not necessarily lead to a fast track to justice. I should be interested to know why the Government have changed their approach and feel it necessary to include punishment as part of youth conditional cautioning.

David Hanson: I thank my hon. Friend the Member for Leyton and Wanstead for eventually moving the amendment, to which he added his name in a late fashion. The debate has been useful. The principle of youth conditional cautions is to have, as my hon. Friend and the hon. Member for Enfield, Southgate have said, a pre-court disposal to ensure that we examine behaviour and look at reparation, rehabilitation and punishment.
I have to say to my hon. Friend that I do not anticipate that all youth conditional cautions will include elements of punishment as well as rehabilitation or reparation, but they could do. There are two reasons why I do not want a situation in which the youth conditional caution does not include a potential element of punishment. First, it is important that the proposed pre-court disposal gives an element of confidence to members of the community who, as the hon. Member for Enfield, Southgate mentioned earlier, are the potential victims of the person receiving the youth conditional caution. Within that element of confidence there must also be the potential for an element of punishment.
I will give two practical examples. Suppose an individual steals something from a shop. The goods are recovered, and a youth conditional caution is considered an appropriate form of order against the individual, because of the nature of their behaviour to date, and as a way of having another pre-court disposal forum. The goods are recovered and the individual is found guilty of shoplifting. The youth conditional caution should contain a potential element of punishment—courses or reparation—as well as rehabilitation. Punishment might well be central to the process.
I will give another example. Suppose an individual draws some graffiti on a wall of a building, and writes their name across it. By the time they face the youth conditional caution, the owner of the property has removed the graffiti. We therefore cannot have reparation because the graffiti has been removed. We could have rehabilitation, but there would also be an element of punishment if the pre-court disposal ordered the individual to undertake the removal of other graffiti in another part of town, as punishment for the actions that gave them the youth conditional caution on that day. A number of circumstances within that show that the element of punishment is not draconian, but it is an option within the youth conditional caution to give confidence to the community and to ensure that victims feel that punishment is part of the response. However, it would not be used in every case, and I hope that that reassures my hon. Friend from the point of view of his amendment.
From my perspective, the purpose of the youth conditional caution is, as we discussed earlier, to ensure that we have an intervention that allows the young person to face the consequences of their action. It will allow them to undertake some form of rehabilitation, and hopefully, it will allow them to make some reparation to the victim. If necessary, it would also provide an element of punishment for the young person, as part of the desired effect of the youth conditional caution is to ensure that that person does not appear in court at a later date for more serious crimes.

David Burrowes: It is helpful to draw out some of those examples. Is not the problem that there are limitations on how far there can be a punitive element, and perhaps even a reparative or restorative element, in the conditional cautioning process? Let us take the case of graffiti on the wall and imagine that it could not be removed or that some damage had been caused to the wall, so there was a need to compensate the victim. Is it not the case that, whether it is called compensation for the victim, or reparation or whatever, in reality that compensation order could not be properly imposed or administered pre-court? To be effective, it would need to be administered in court by way of attachment to a reparation order or the like. That is just one example of how, in certain circumstances, the desires for reparation or punishment cannot be truly met. One needs to be cautious about extolling the virtues of conditional cautions, because they are inherently limited by their very nature.

David Hanson: I hope that I do the hon. Gentleman justice in saying that I think that he would, in principle, support youth conditional cautions. I am paraphrasing, but I think that he wants to see interventions that are effective, that help with rehabilitation and reparation, and that are pre-court—sometimes we do not want to escalate the young person into the criminal justice system. Hopefully, the youth conditional caution will be a major intervention, to stop people coming back to court later.
I will certainly examine the points that the hon. Gentleman has made. However, it seems to me that the order contains an element of punishment, which has to be present to generate community confidence. It has the potential to be an intervention that will ensure that the young person does not return to court later, because they will have seen that the youth conditional caution is not just a soft option for them, but has its own elements of rehabilitation, reparation and punishment. Consequently, the young person will recognise that it is a serious intervention in their offending behaviour, with the objective of keeping them out of court.
I understand that the offender could be required to compensate, but in this case that would not be part of a court order. So I will reflect in detail on the point that the hon. Gentleman has made, and if there is anything that I need to add to what I have already said then I will write to him.
These amendments proposed by my hon. Friend the Member for Leyton and Wanstead are helpful in that they have teased out the details. I do not intend all youth conditional cautions to have an element of punishment, but I do not wish to rule out the possibility of such an element. The conditional caution will reflect the circumstances of the case and the court will determine whether, for the sake of the individual and for community confidence, an element of punishment should be included. I hope that my hon. Friend will withdraw his amendment.

Harry Cohen: I thank my right hon. Friend for that clarification. I would be grateful if he cleared up one further point. The Liberty briefing referred at the end to the possibility of a fine or some monetary costs being associated with the conditional caution. Will he confirm that that is the case?

David Hanson: I have not dealt with that issue because the next set of amendments deals with the question of a fine. I thought that we could have two debates for the price of one.

Harry Cohen: I am grateful to the Minister for his clarification. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

David Burrowes: I beg to move amendment No. 143, in schedule 11, page 166, leave out lines 5 to 8 and insert
‘a condition that the offender attend at a specified place at specified times, but may not include a condition that the offender pay a financial penalty’.

Edward O'Hara: With this, it will be convenient to discuss amendment No. 144, in schedule 11, page 167, leave out lines 1 to 24.

David Burrowes: In moving the amendment, I hope to provide good value by enabling us to talk about financial penalties.
The purpose of the amendments is effectively to exclude from youth conditional cautions the opportunity or power to impose a financial penalty. The principle is one that we have outlined before in terms of achieving the best value approach, and I do not wish to repeat that discussion. Nevertheless, it is important to consider the appropriateness of a pre-court disposal in the light of its being pre-court and therefore not designed to mirror or to replicate what can be properly achieved only by way of a court disposal.
The concern underlying the amendments is that a financial penalty is a significant penalty, particularly when one is dealing with young people, although the figures show that the fines the courts impose on young offenders are less than the fines for adults. There are also significant issues of enforcement. When we try to transpose the imposition of a fine on young offenders into the youth conditional cautions, one must consider whether that caution is an appropriate vehicle for a fine.
There is also an issue of practice. The practical side to a financial penalty is problematic for courts—the problems that magistrates courts have had in relation to enforcement of fines are well known by members of this Committee and by others—and it is that much more difficult when one is dealing with young offenders, who are dependent on their parents to pay the fines. It can therefore be difficult to enforce any financial penalty. Indeed, we shall be dealing in a later debate with the whole issue of enforcement in relation to young people and the problems that have arisen.
The purpose of the amendments is to draw out from the Minister how he sees the pre-court disposal process working out in practice and how the custody officer and a Crown Prosecution Service lawyer would work out the appropriate level of fine. In a magistrates or youth court setting, will there be a means test? Will the suitability of the young defendant be assessed to see whether he can pay a financial penalty? Will that process take place with the condition of payment of a financial penalty? For those reasons, I ask the Minister to consider the amendments seriously and to say whether it is indeed appropriate to have a financial penalty attached to conditions.

David Hanson: As I said earlier when responding to amendments Nos. 183 and 142, punishment should be an option available under the youth conditional caution. My hon. Friend the Member for Leyton and Wanstead asked whether a fine could be levied on an individual under the youth conditional cautioning system. The amendments would remove that option, but it is important that we consider that element of punishment and decide whether a fine is appropriate in those circumstances.
If we reduce or remove the fine element as proposed, we would remove some of the flexibility of the youth conditional caution. For some individuals aged 16 or 17, the payment of a fine could both act as an effective deterrent and punishment, and be something that allows the individual to take in the offence and move on from it fairly quickly. It might be equally important that the youth conditional caution is available for some offences that, as I said earlier, do not merit reparation and do not particularly merit rehabilitation because the offence may be something for which the individual does not need broader rehabilitation. However, it might be effective as a punishment of the individual and a deterrent to be used in the pre-court disposal of the youth conditional caution.
Many 16 and 17-year-olds are at work and have a disposable income. That would be taken into account when considering the fine element of the youth conditional caution. Furthermore, many 16 and 17-year-olds might prefer a fine to another disposal available under the order. I am trying to maintain flexibility within the youth conditional caution that allows a range of options to be available, including punishment. It is already the case that a fine in the form of a fixed penalty notice can be issued in a pre-court disposal. We are therefore not breaking any new ground.
I expect account to be taken of the offender’s means. I certainly do not want a fine to be imposed on an offender who is not in a position to pay it. That would be a retrograde step and might even lead to an escalation of the behaviour that led to the imposition of the conditional caution. However, it is important to have such an option available to the youth conditional caution process and, for that reason, I ask the hon. Gentleman to withdraw the amendment.

David Burrowes: I do not want press the amendment to a Division. However, a valid concern was expressed by the Magistrates Association in evidence to the Committee about a financial penalty being attached to youth conditional cautions. It sees the problem in the context of the enforcement of fines and the need for them to be subject to means. The Minister described the importance of flexibility, but the problem is the extent to which it is within the province of the Secretary of State by order to prescribe which offences could be subject to financial penalties.
That raises an important point about the extent of the pre-court disposal, in which the type of financial penalty that is deemed appropriate for a particular offence is at the behest of the Secretary of State. It would be administered by the police, rather being determined in a more traditional way by magistrates, subject to guidelines and case law. The concern is that we might be moving towards a form of summary justice which does not involve normal avenues of the law. The measure is one-sided: it is decided by the Secretary of State, who can order which offences should have a financial penalty; and on the same side, the agencies of the state and the police under the advice of the CPS, would decide on the appropriateness of the penalty.
We will not have a meeting of minds on this matter, but perhaps the Minister could respond to the underlying concerns and help the Committee, and indeed those practitioners who will have to deal with the issue, to understand the reality of the situation in relation to financial penalties that do not involve a court disposal, but a pre-court disposal.

David Hanson: I wanted to check the figures before I intervened. However, I understand the performance on fine enforcement is now generally extremely high—from memory, the figure is over 90 per cent.—so if the youth conditional caution has a fine attached to it there can be every expectation that that fine will be enforced. Secondly, it is important to realise that if a financial penalty was imposed and not paid, that could be a breach of the youth conditional caution. That in itself could lead to a further fine or court appearance, which acts as an incentive to the individual to pay the fine and keep out of court.

David Burrowes: I acknowledge that there has been an improvement in the enforcement of fines, but I am not sure if the figure of 90 per cent. applies to youth court enforcement and the level of success in that area. The other problem with those figures is that they do not include compensation orders and the amount of enforcement that takes place in relation to that. The jury is still out on the success of enforcement.
I do not wish to continue further. Perhaps it would be useful if the Minister reflected in particular on the order-making powers of the Secretary of State, and the need for us to see at an early stage the type of offences that the Secretary of State feels would warrant the attachment of a financial penalty. However, I do not wish to press the amendment to a Division. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That this schedule be the Eleventh schedule to the Bill.

David Heath: I would like to raise three curiosities relating to schedule 11 that have not been covered previously. The first relates to new section 66A of the Crime and Disorder Act 1998, inserted by paragraph 3 of the schedule. Under the first part of that new section, the youth conditional caution cannot be given to an offender who has previously been convicted of an offence. That is at variance with the adult conditional caution which can be acquired at any stage in a person’s career. There must be a reason why the Government distinguish between the two, and I would be interested to know what that may be. Incidentally, it introduces the same sort of distinction as I referred to earlier between a 15-year-old and a 16-year-old, only in this case it would be a distinction between a 17-year-old and an 18-year-old. The 18-year-old with an identical history could have an adult conditional caution but the 17-year-old would be unable to have a youth conditional caution. I am interested to know the reason for that anomaly.
The second issue relates to proposed new section 66A(5), which sets the attendance condition for an offender at 20 hours. That is a significant period, and rather longer than might be the case in certain disposals within the court. It seems a little topsy-turvy that a conditional caution could involve a longer “sentence”—that is, a longer condition in terms of attendance—than would have been imposed by a court in similar circumstances. I wonder where the figure of 20 hours comes from and whether there is a justification for that.
The last point that I would like to raise relates to proposed new section 66F, which would make it impossible to apply a conditional discharge. It does not seem entirely sensible for the court not to have that discretion following the application of a youth conditional caution, because there may be circumstances where that is precisely the right disposal. We know that there is already a provision following a final warning, but in this instance it appears that there is merit in allowing the court at least to consider a conditional discharge when that is the most appropriate disposal. It may well not be; it may be that if somebody has gone through the conditional caution and commits a further offence, they have reached the end of the road and the court should apply a different sanction, but I cannot see why it should not be allowed to consider a conditional discharge. I invite the Minister to satisfy me, if he can, on those three points.

David Burrowes: Concern was voiced earlier in the debate about the range of conditions that are imposed as part of conditional cautions and whether there will be some regulation of the range that can be imposed by the police and the CPS. There is also concern about the number of conditional cautions that a young offender can have before a court disposal becomes necessary, and whether young offenders would be given any guidance on that. Perhaps most significantly, there is no reference in the schedule and the related clauses to the role of the youth offending team or whether the guidance will make explicit the need for a youth offending team to implement properly the conditions as part of the caution.
I make a final plea for the Minister to respond on the type of offences where the Secretary of State would prescribe it necessary to attach a financial penalty, given that that is to be done by way of an order-making power.

David Hanson: First, I assure the hon. Member for Enfield, Southgate that it will be essential for youth offending teams to be involved because we are looking at how we can prevent further misbehaviour by young offenders who have been given a youth conditional caution. The youth offending team will be central to that in terms of what they can do with both the young offender and, potentially, with individuals in the extended family.
On the points that the hon. Member for Somerton and Frome raised, those matters are not at variance with warnings under the Crime and Disorder Act. Youth conditional cautions are not available for adults. The conditional discharge issue that he mentioned reflects the position on warnings under the Act. Young people who receive a youth conditional caution should not be in a better position than a person who has received a warning, as they will have already had one or two slaps on the wrist and should not get another.
The figure of 20 hours that the hon. Gentleman mentioned is a maximum. Fewer hours may be given, but it is important that the figure is in line with other maximum hours on activities that can be imposed under the Bill with conditional discharge. I hope that that helps him. [Interruption.] If the hon. Gentleman wishes, I will look over what has been said and write to him regarding any points that have not been addressed. The main points are that the 20 hours figure is a maximum and that the conditional discharge measures are reflected in the Crime and Disorder Act. The figure is not at variance with those in the Act for warnings which are not available for adults. I shall reflect on what has been said and, if need be, I shall drop him a note to clarify matters.

Question put and agreed to.

Schedule 11 agreed to.

Clause 54

Protection for spent cautions under the Rehabilitation of Offenders Act 1974

Question proposed, That the clause stand part of the Bill.

David Burrowes: The broad rationale of the clause is clear and one cannot object to the concern to avoid prejudice against people who have received cautions, reprimands or warnings when they seek jobs and have to disclose their spent cautions. The position regarding the disclosure of spent convictions is set out in the Rehabilitation of Offenders Act 1974. We accept that broad rationale, but I want to highlight our concerns.
Cautions, reprimands and warnings are not convictions, which is why they were outside the ambit of the 1974 Act, and it is important that we do not creep into considering those disposals to be on a par with convictions. That chimes with the earlier debate on pre-court disposals and the importance of distinguishing such disposals from a conviction. Plainly, a caution, reprimand or warning is an admission of an offence in which there is sufficient evidence to prosecute, but they are wholly different from convictions and should be treated as such. We are concerned that the good intention of trying to prevent prejudice against people with spent cautions does not develop into their being seen as equal to convictions. It is important that we recognise the differences.
The rationale is based on the disclosability of previous cautions. What evidence is there that there is a problem regarding the disclosure of spent cautions? In their consultation paper of 19 August 1999, the Government said that
“it is anomalous for cautions, reprimands and final warnings to be disclosable in circumstances where convictions are not.”
The evidence was supposedly there then. Why, despite the number of criminal justice Bills that have gone through Parliament, are we now in a position that this clause has been added to the Bill? What additional evidence that there is a need to legislate is there now that was not there in 1999, when the supposed anomaly was highlighted? Has there been a problem in the intervening time without legislation that justifies the provision?

David Heath: Further to the comments made by the hon. Member for Enfield, Southgate, may I ask the Minister why this measure does not distinguish between the rehabilitation provision for a youth conditional caution and the adult equivalent? Throughout the Rehabilitation of Offenders Act 1974, that distinction is made. That Act distinguishes between what applies to children or young people and what applies to adults. There is a different rehabilitation period for fines, community rehabilitation orders, community punishment orders, community punishment and rehabilitation orders, curfew orders, drug treatment and testing orders and for most custodial sentences. Indeed, even in part 1 of the Bill, there is a shorter rehabilitation period for the youth rehabilitation order than there is for the adult equivalent, so why is no distinction made in the case of these cautions? I am sure that the Minister has a reason, but it will have to be quite a good one to suggest that these measures must be an exception from all the other provisions that are covered by the 1974 Act.

David Hanson: Clause 54 introduces schedule 12, which is essentially the nub of the discussion that both hon. Gentlemen have provoked. The schedule provides for the extension of the Rehabilitation of Offenders Act 1974 to cover reprimands, warnings, cautions and conditional cautions as well as convictions. The out of court disposals that the Bill introduces are not currently within the scope of the 1974 Act and therefore they never become spent. What that means, in effect, is that, in the event of clause 54 and schedule 12 not forming part of the Bill, the youth conditional cautions in particular—simple cautions that may have been given, for example, several years ago for relatively minor offences—will have to be disclosed when the Bill comes into effect. The purpose of the clause and the schedule is to ensure that those disposals become spent.
The 1999 consultation paper “The Rehabilitation of Offenders Act 1974 and Cautions, Reprimands and Final Warnings” proposed that those three out of court disposals should be brought within the ambit of the 1974 Act and that they should be immediately spent, because, as we have discussed, cautions are used primarily for less serious offences. Therefore, the Bill provides that simple cautions, reprimands and final warnings should become immediately spent.
Since that consultation exercise was undertaken, the Criminal Justice Act 2003 has introduced conditional cautions for adults, as has been mentioned, and the Bill proposes the introduction of youth conditional cautions for offenders aged 16 or 17. I believe that both of those cautions need to be brought into the scope of the 1974 Act.
Clause 54 and schedule 12 set the rehabilitation period for conditional cautions and youth conditional cautions at three months—the midpoint between simple cautions and the least serious court disposals. They also ensure that such cautions remain on record while the conditions are outstanding. I hope that hon. Members will welcome those facts, because I am sure that they would not wish to see the maintenance of those youth conditional cautions on offenders’ records in the future.
Our intention has been to legislate when parliamentary time allows, and the introduction of youth conditional cautions now makes it all the more important that we provide for those cautions to become spent. Clause 54 and schedule 12 will do so. I commend the clause to the Committee.

Question put and agreed to.

Clause 54 ordered to stand part of the Bill.

Schedule 12 agreed to.

Clause 55 ordered to stand part of the Bill.

Clause 56

Allocation of offences triable either way etc.

Question proposed, That the clause stand part of the Bill.

David Burrowes: The clause provides a good opportunity to highlight previously expressed concern about the amendment of unimplemented legislation. It is consistent of us to welcome the extension of discretion, given that we have argued in debating other clauses against its removal from magistrates courts, and the clause is welcome. The Government have decided to remove an unimplemented measure in the Criminal Justice Act 2003 that would have limited magistrates’ discretion to send to the Crown Court cases in which the defendant pleads guilty before a venue. The discretion will now be extended back to the original position before the 2003 Act—magistrates will have wider discretion to commit offenders tried summarily to the Crown Court for sentence.
The concern is best summed up by the Magistrates Association, which welcomes the reversal but considers
“the legislative situation to be confusing. The Bill amends an unimplemented part of an earlier Act, which in turn altered another Act which is still in force—the effect appears to be to retain the status quo. Less legislation and better thought out provisions would avoid such confusion.”
I would welcome the Minister’s comments.

Maria Eagle: I understand and accept the hon. Gentleman’s point about the undesirability of the confusion that can be caused by amending unimplemented legislation, but I do not think that one should put it at the top of one’s list of things to chase after, as a Minister. However, I take on the chin the points made by the Magistrates Association and others.
Clause 56 introduces schedule 13, which changes schedule 3 to the 2003 Act, as the hon. Gentleman explained. In mitigation, the original purpose in the 2003 Act—it was before my time in the Department—was that custody plus, the 12-month sentencing power and the procedural reforms in schedule 3 should be implemented at the same time. As the Committee knows, custody plus is not being implemented at present, but there is certainly a lot of support for it. A review last year found a consensus on sentencing among criminal justice agents that replacing the committal procedure with a sending procedure offers benefits. It makes sense to consider bringing schedule 3 into force by itself, hence the clause and schedule 13.
I accept the hon. Gentleman’s point that it is not entirely desirable to amend unimplemented legislation. We should certainly try to avoid it, and I undertake to do so in future. I hope that he will accept that I have listened to what he said. It was an issue worth raising. The Magistrates Association itself said that although clause 56 might create a certain amount of confusion, it does not oppose the clause as part of the whole picture, and that it is probably a good thing. On that basis, I commend clause 56 to the Committee.

Question put and agreed to.

Clause 56 ordered to stand part of the Bill.

Section 13 agreed to.

Clause 57

Trial or sentencing in absence of accused in magistrates’ courts

Maria Eagle: I beg to move amendment No. 202, in clause 57, page 37, line 18, at end insert—
‘( ) In each of subsections (3) and (4), for “A magistrate’s court” substitute “In proceedings to which this subsection applies, the court.”’.

Edward O'Hara: With this it will be convenient to discuss Government amendment No. 203.

Maria Eagle: As I—[Interruption.] There is some coughing in the Committee, and I hope hon. Members with coughs feel better as we go on into this afternoon and evening, or whenever. We are in the hands of others in that regard.
As I began with mea culpas, may I admit that when the Bill was introduced, two short subsections were accidentally omitted from clause 57? Their purpose was to qualify section 11 (3) of the Magistrates’ Courts Act 1980, which prohibits magistrates courts from imposing a custodial sentence in an offender’s absence, and subsection (4), which restricts the circumstances in which a court could impose disqualification. The missing provisions would have limited those prohibitions to cases initiated by
“an information, where a summons...and...by a written charge” 
and requisition.
In other cases, the most important category of the measures relates to a situation in which a defendant has been bailed to appear in court. In such a case, the prohibition would be lifted on the basis that he would know that he was due to appear in court, but that is not always so when cases are initiated by information and summons. It does not necessarily follow that a court would consider it appropriate to impose a custody in absence, but that would not justify statutory prohibition. The amendments will put the missing subsections in the Bill, and I hope that the Committee will make them.

David Burrowes: I welcome the Minister’s mea culpa—long may that continue. These belated provisions to amend the Bill are welcome, but they raise a question similar to one asked earlier about the magistrates courts’ citation and concern about legislation. The Committee will remember that during an evidence session, magistrates said that they were not properly consulted, and that practitioners such as themselves and others who deal with absent clients and defendants day in, day out, could have given clear advice to deal with the problems that the amendments will address. Any magistrates court could say clearly that there is a need to ensure that proceedings
“instituted by an information, where a summons has been issued; and...proceedings instituted by written charge”
were necessary prerequisites when they deal with cases involving absent clients. That illustrates what we heard in evidence sessions and outside the political process—that practitioners such as magistrates and others would want to be fully informed, engaged and consulted when proposals are put forward, so that they can ensure that mistakes do not occur.

Maria Eagle: I hear what the hon. Gentleman says. It is not that the provisions were not written and ready to be included in the Bill; that they were not included owes more to an administrative issue than to a lack of consultation. I heard what he said, but I would be grateful if the Committee allowed the amendments to be made.

Amendment agreed to.

Amendment made: No. 203, in clause 57, page 37, line 25, at end insert—
‘“(4A) Subsections (3) and (4) apply to—
(a) proceedings instituted by an information, where a summons has been issued; and
(b) proceedings instituted by a written charge.’.—[Maria Eagle.]

Question proposed, That the clause stand part of the Bill.

Edward O'Hara: With this it will be convenient to discuss the following: New clause 23—Protection of vulnerable persons following conviction
‘(1) The Magistrates’ Courts Act 1980 (c. 43) is amended as follows.
(2) After section 11 insert—
“11A Protection of vulnerable persons following conviction
(1) Where a court has proceeded in the absence of an accused under section 11 and following conviction the court or its officers are informed or discover that the convicted person falls into a vulnerable category as laid down by page 9 of the National Standards for Enforcement Agents, no further steps under a fines collection order or enforcement measure shall be taken until the court has held an inquiry into the means and circumstances of the convicted person in his/her presence.
(2) When conducting an inquiry into means and circumstances of the convicted persons under subsection (1) the court shall also consider whether any other occupant of the property in which the convicted person resides falls into a vulnerable category.
(3) Where on having conducted the inquiries required by subsection (1) in the presence of the convicted person who is subject to the fine, and having considered the situation of any other occupant required by subsection (2), the court may vary the level of fine imposed on the convicted person or substitute it with another penalty it considers appropriate.
(4) Where, on having conducted the inquiries required by subsection (1) in the presence of the convicted person and having considered the situation of any other occupant as required by subsection (2), the court may place such restrictions on enforcement as it sees fit and amend any fines collection order as it sees fit, including withdrawing or cancelling the order.
(5) Where the court or its officers are informed or discover that a convicted person falls or is likely to fall into a vulnerable category any warrant of distress issued will be suspended and returned to the court for further consideration.”’.

Harry Cohen: I tabled the new clause on behalf of the Zacchaeus 2000 Trust. Representations were made to me by Rev. Paul Nicolson, the chairman of the trust. He makes a good case that relates to the treatment by the courts of vulnerable people and, beyond that, by bailiffs. There is a great hole in the current procedures that mean that vulnerable people are treated extremely badly.
Clause 57 will amend section 11 of the Magistrates’ Courts Act 1980 with respect to criminal trials that start in the absence of the person who was summonsed. It reduces the discretion of justices to decide whether to proceed in the absence of the accused. Vulnerable people are fined in their absence and, for many reasons, fail to pay the fine. They might be illiterate, ill, confused or a busy lone parent on benefit with several children to look after all at once with no one else to look after them if they go the court. There are myriad reasons why poor people do not attend court. They rarely receive advice or legal support in a fines court unless the magistrates are minded to imprison them. They are in a vulnerable position in the courts, and that is not taken properly into account.
If the magistrate has no defendant, he invariably imposes the largest fine available to him, which is disproportionate to the means of the people who I am describing, especially those on the lowest incomes. It is incredibly difficult when that happens to get the case back to court. The Zacchaeus 2000 Trust said that a case in which it was involved was fraught with difficulty. Since March 2006, when the relevant part of the Domestic Violence, Crime and Victims Act 2004 came into force, the magistrates have no responsibility for enforcing a fine after the case is heard and the level of the fine is set. The collection order is given to the fines support officer who administers its enforcement. If the defendants are in court, they invariably make an agreement to pay, but if they are not, the matter ends up in the hands of the bailiff who still has draconian powers and can break into houses without reference to the court.
The trust said that the 2004 Act gave bailiffs even more power. It overturned the previous common law controls. It has found that the bailiffs completely ignored the national standards for enforcement agents, especially the relevant standards on page 9 of its document, which outlines a procedure for returning such cases to magistrates for reconsideration in the light of a means statement. It is not in the bailiffs’ interest to get the case returned to the court. They are not interested in that. They just want to push ahead with enforcement.
The Zacchaeus 2000 Trust was effectively told that once a case has been handed to the bailiffs, it could not be withdrawn. Whatever the letter of the law says—even some of that is not very adequate—that is the real position that many vulnerable people find themselves in. Despite the advice of the Ministry of Justice, which says that such cases can be returned to the magistrates, that does not seem to be the case in reality.
Lord Justice Simon Brown interpreted the law in the case of R v. Hereford and Worcester magistrates court, ex parte MacRae 1999, which held that a distress warrant cannot be withdrawn once it has been issued. That approach has been further enshrined in other legal documents.
The amendment does two things. First, it puts a common-sense procedure into statute, so that when a vulnerable situation is encountered, the magistrate can provide a just level of penalty for the case. Secondly, it tries to give some teeth to the national standards for enforcement agents—the point is made on page 9—which calls bailiffs to account when they are dealing with vulnerable households and individuals.
One final point is that the Home Office added a last minute amendment to the Domestic Crime, Crime and Victims Act 2004, which allowed bailiffs to break into domestic premises to enforce a fine. That comes into force in March 2006. When it did that, it said that the measure would be used as a last resort, but it is not difficult to imagine how, and under what circumstances, it has been operating in practice.
When the Zacchaeus 2000 Trust sought information, the Ministry of Justice refused to provide it. The trust was sent 30 pages of guidance from magistrates, with 15 of those blacked out. That is not right. I know from own constituency that a lot of people suffer from heavy-handed action, and in those circumstances it is reasonable for a pressure group such as the Zacchaeus 2000 Trust, and those who wish to control the activities of bailiffs and hold them to account, to be able to look at the papers and see how the law is operating. It was good of the Rev. Paul Nicolson and the Zacchaeus 2000 Trust to bring the matter to our attention, and I am pleased to move the amendment and to get a response from the Minister on the matter.

David Heath: I am grateful to the hon. Member for Leyton and Wanstead for introducing the new clause to which I have added my name and that of my hon. Friend. It raises an important issue. I would also like to deal briefly with the clause stand part and the general circumstances in which the clause moves towards a presumption of a trial in absentia, rather than the occasional disposal that the courts already have available. The matter raises some issues.
I hold no brief whatsoever for those who delinquently absent themselves from court. They must be made to realise that when they are summonsed to appear in court, it is a serious matter and they must appear. There are far too many court cases that are delayed or adjourned due to the non-appearance of defendants or other key players, and it is not in the interests of the administration of justice for that to be the case. However, I still have concerns about people such as those to whom the hon. Gentleman referred—vulnerable people who are wrestling with extremely difficult problems who may not be intentionally delinquent but are chaotic. We all know of these people from our surgeries, and we all know the extent to which small problems can escalate into huge ones simply by their not doing what is expected of them by the system. They find themselves getting into deeper and deeper trouble, and eventually turn up at our advice surgeries, but we find it difficult to give them adequate advice because of the difficulties in which they find themselves.
That happens also in court. It happens with people who have chaotic lifestyles of one sort of another, or who have difficulties in their personal circumstances, which can occasionally result in them not appearing in court. It gives me cause for concern that those factors may not be recognised by the court. It is also gives their representative lawyers a problem because of the competing responsibilities of the solicitor to his or her client and to the court as an officer of the supreme court. They therefore have the responsibility of ensuring that the trials take place in an appropriate way. I would prefer, if possible, to avoid such conflicts of interests.
Having said that, the problem mentioned by the hon. Gentleman is a real one. Much concern has been expressed in recent years over the way in which bailiffs carry out their duties. Despite everyone’s best intentions, and despite guidance, it often seems that they carry out their duties aggressively and inconsiderately and in a way that shows little regard for the circumstances of the person upon whom they are levying the distress warrant. We should be concerned about that. We should be concerned about precisely the sort of people referred to by the hon. Member for Leyton and Wanstead earlier, which is the principle concern of the Zacchaeus 2000 Trust in its work with such people.
We want some sort of process of referral back or repechage, not to enable people to evade their responsibilities to the court but to ensure that the procedure takes cognisance of their situation and acts accordingly. We do not want an escalation of costs or penalties; it is in no one’s interests if all we do is make a poor person poorer still, or take away essential items from a household that is already deprived. It is not a bleeding-heart liberal issue; it is about common humanity, and not dealing badly, as is sometimes the case, with people who are not able to look after themselves or who cannot even see what actions on their part would be in their best interests. That, sadly, is too often the case.
I support the new clause, and I look forward with interest to the Minister’s response.

David Burrowes: I commend the hon. Member for Leyton and Wanstead on the intentions behind the new clause.
I commend the Zacchaeus 2000 Trust on its tenacity and persistence and for Paul Nicolson’s concern for the vulnerable. In many ways, we are talking about legislation, but organisations such as the Zacchaeus 2000 Trust are at the sharp end, dealing with vulnerable people in a noble way. I wish to commend Mr. Nicolson on bringing to our attention his concerns about young people, especially those who, for instance, face bailiffs at the door. It is a worrying situation for many, as they do not know how to deal with such situations. However, they seek some justice, to the extent that they want their inability to pay fines to be brought to bear.
I would like the Minister to respond to the legislative and practical concerns at the heart of new clause 23 about the effectiveness and teeth of the national standards for enforcement agents. Page 9 of the national standards refers to the need for enforcement agents to recognise their
“role in ensuring that the vulnerable and socially excluded are protected and that the recovery process includes procedures agreed between the agent/agency and creditor about how such situations should be dealt with”,
and emphasises the need for an appropriate use of discretion when dealing with vulnerable people.
I understand that the Zacchaeus 2000 Trust and Ministers have debated the definition of vulnerable people, and that concern was expressed about the difficulty of defining vulnerable people during the passage of previous legislation. Further concern was expressed about the need to give teeth to the national standards during the passage of the Consumer Credit Act 2006 and the Tribunals, Courts and Enforcement Act 2007. Section 12(2) of the Consumers, Estates and Redress Act 2007 provides a definition of a vulnerable person, to which reference is made in the national standards.
Will the Minister assure the Committee that there will be proper and robust enforcement of the national standards? From my experience as a practitioner, and particularly as a duty solicitor, I know that in such situations, there are ways to get the warrant withdrawn and to ensure that true account is taken of the young person’s means. That often means that the fine is remitted to a level that can be paid. No one is suggesting that that young person should be let off the fine, just that it should be appropriate to their circumstances, and certainly we should be able to deal with those situations when taking enforcement action against absent defendants. It would be preferable if we could enforce those national standards properly without additional legislation. Will the Minister give the necessary assurance?
Clause 57 creates a presumption that if a defendant fails to attend a trial in a magistrates court without good cause, the magistrates will use their powers to try them in their absence and sentence them if convicted. However, magistrates have that discretionary power already, which they often use appropriately and subject to existing case law, such as R v. DPP, in which the High Court emphasised that the discretionary power to commence a trial in the absence of a defendant should be exercised with the utmost care and caution. Furthermore, magistrates have an eye on article 6 of the European convention on human rights, which ensures a fair trial.
Advocates might seek to persuade magistrates to exercise their discretion with care and not to proceed in the absence of a defendant, but often they exercise their discretion and proceed anyway. In fact, it is now common practice, whenever a trial date is fixed, to remind the defendant that if he does not attend, the magistrates will proceed in his absence. Why is it necessary, therefore, for this Bill to seek to enforce what is happening already? By building in a presumption when there is good cause, are we not getting close to infringing article 6? Has the Minister satisfied herself that the clause complies with the article? When magistrates are using their discretion on a case by case basis, taking into account the circumstances of the defendant and any case history, they are often in the best position to decide whether to proceed in the absence of the defendant, without the need to create a statutory presumption in that favour.

Maria Eagle: I begin by congratulating my hon. Friend the Member for Leyton and Wanstead on introducing the new clause, and I will seek to reassure him. Perhaps I should warn the Committee that 3.30 is my worst time of the day, but we still have that to come. I join my hon. Friend in congratulating the Zacchaeus 2000 Trust and the work that it does. I do not think that there is an hon. Member, and certainly not a solicitor, who has not come across the kind of vulnerability that we are discussing out there in the world, in our advice surgeries, in court or in forums where we seek to assist members of the public. I do not think that there is disagreement between any members of the Committee about the need to ensure that there are relevant protections for vulnerable people in such circumstances. The issue is whether this new clause is the best way of achieving that.
New clause 23 would force magistrates, fines officers or clerks to magistrates to suspend, pending a means inquiry, warrant enforcement procedures, reconsider how the fine is being enforced and potentially re-sentence an offender where the offender, or some other person present at the property where a magistrates court warrant is being executed, may be vulnerable, as defined by page 9 of the national standards for enforcement agents, which states:
“Those who might be potentially vulnerable include: the elderly; people with a disability; the seriously ill; the recently bereaved; single parent families; pregnant women; unemployed people; and, those who have obvious difficulty in understanding, speaking or reading English.”
Later I will say something about the national standards, but I want to set out for the Committee why I do not think that the new clause is necessary in order to provide that level of protection, although I do not comment on individual cases that my hon. Friend may have been referring to and which have been the subject of some correspondence.
There is a well-developed body of law—statute law, case law, practice directions and so on—in the magistrates courts that ensure that every defendant’s right is upheld, and that is certainly the intention. Section 11 of the Magistrates’ Courts Act 1980 says that the court may proceed in the absence of the accused. Guidance on proceeding in the absence of the defendant has been given in the criminal consolidated practice direction of 2002. It directs that the decision to proceed in the absence of the accused must be exercised judicially, with proper regard to the principle that a defendant is entitled to a fair trial; that must include a fair opportunity to be present and/or be legally represented. However, the principle that the defendant should have a fair opportunity to be present does not amount to an unlimited opportunity. If it were to do that, the defendant could indefinitely postpone the proceedings by not turning up at the relevant time. The intention of the clause, on the basis of an extremely long list of vulnerability, is to require the court to reconsider, sometimes at length, what it is doing in any particular case.
I do not accept that that level of prescription is necessary. The court always retains the right to take a judicial decision on how to proceed. This can range, in appropriate cases, from withdrawing a warrant to re-hearing the entire case. Cases can be returned to the court and considered by the magistrates again if the situation warrants it, and there may be individual circumstances in which that is the right way forward. Enforcement officers can already be prevented from continuing with the execution of a distress warrant by the withdrawal of the warrant. The court’s power to do that is discretionary and it can be found in section 142(1) of the Magistrates’ Courts Act 1980, which states:
“A magistrates’ court may vary or rescind a sentence or other order imposed or made by it when dealing with an offender if it appears to the court to be in the interests of justice to do so; and it is hereby declared that this power extends to replacing a sentence or order which for any reason appears to be invalid by another which the court has power to impose or make.”
That provides an extremely wide discretion for the court to deal with individual circumstances of the kind described by my hon. Friend and referred to by Opposition Members.
New clause 23 may give rise to a situation in which some people are able to benefit from repeatedly not attending court. An offender could halt all enforcement procedures by refusing to attend court. I know that that is not my hon. Friend’s or anyone else’s intention. They seek to protect those who are vulnerable, but I am arguing that sufficient protections are in place. If the circumstances are not all known at the time at which the original order is made, it is possible for the court to revisit it in view of receiving correct information.
The hon. Member for Somerton and Frome in particular referred to the activities of bailiffs. I remind the Committee that the Ministry of Justice is consulting on the regulation of bailiffs, in conjunction with the Home Office, to ensure that there is a regime which prevents the abuses that sometimes take place, about which many members of the Committee will have heard from their constituents, and which can be the real cause of some of difficulties which have been referred to today. Responses to the consultation are currently being considered, and, in due course, we will release the outcome of that process and, hopefully, we will be able to bring in a better regulatory regime for the activities of bailiffs.
The hon. Member for Enfield, Southgate raised the question of the ECHR implications of the clause. I can reassure the hon. Gentleman that my right hon. Friend the Minister of State has certified the implications, in respect of the entire Bill. He certainly would not have done so had he been of the view that those matters were not compliant.
In relation to the clause stand part debate, it is quite right that the magistrates currently have a discretion, which is used widely in some parts of the country. However, it is not used uniformly and, in other areas, courts have seemed especially reluctant to proceed in absence. That is why putting a presumption in the legislation, with the appropriate safeguards that I have set out, ought to level out that sort of uneven activity.
My hon. Friends might be further persuaded if I were to say that this is a manifesto commitment. That might not help Opposition Members, but they ought at least to acknowledge the fact that it is perfectly reasonable for a Government to try to implement its manifesto commitments.
With that clinching argument, I support the clause but I ask my hon. Friend not to press new clause 23.

Harry Cohen: I am grateful for that clarification. I was not sure whether it was I or the hon. Member for Somerton and Frome who said that it is important that people should attend court, but I want to make clear that that is my view. The courts should facilitate attendance if the individuals are vulnerable, and they are still a long way from doing so.
I was also grateful for the Minister’s assurance that such cases can be returned to the court. I hope that that message will go out clearly to the courts and that that will then happen in actuality. I also hope that the courts, having that discretion, exercise it to recall the warrant in cases involving vulnerable people. The consultation on the regulation of bailiffs is also very welcome and I hope to see a good outcome from that.
That is all that I wanted to say. I thank the Minister for his response. I shall not press for the new clause to be added to the Bill.

Question put and agreed to.

Clause 57, as amended, ordered to stand part of the Bill.

Clause 58

Extension of powers of non-legal staff

Question proposed, That the clause stand part of the Bill.

David Burrowes: The clause is significant, dealing as it does with matters of principle and application relating to how we view the magistrates court and whether we wish it to have the independence and provide the quality of justice that all parties involved in the justice system—be it the defendant, the prosecutor or the victim—would regard as important.
I would like to begin by dealing with those who do not support the clause. First, the Magistrates Association said in evidence to this Committee that it strongly opposes the proposal, regarding it as a downgrading of the magistrates court. The association understands that the Crown Prosecution Service does not favour the proposal, either. It would be interesting to hear from the Minister whether that is the case.
The concern is that there will be an extension of the ability of non-legally qualified staff to conduct trials in magistrates courts; proceedings in magistrates courts in relation to certain offences that were previously excluded from their remit, including serious cases triable on indictment where the accused has elected to be tried by jury or where the court has found that they should be tried by jury; applications for preventative civil orders, and certain proceedings assigned to the Director of Public Prosecutions by the Attorney-General under the Prosecution of Offences Act 1985.
In essence, the clause proposes that “not guilty” trials, including trials for serious offences punishable by imprisonment, such as assaults, public order, thefts, including shoplifting, and driving offences, where defendants have chosen to be heard in front of the magistrates court rather than the Crown court, should be conducted by non-legally qualified Crown Prosecution Service staff. The effect of this proposal will be to extend significantly the role of designated caseworkers beyond the area in which they are currently involved.
I concede that there has already been an extension of the role of caseworkers. The Narey report in 1997 recommended that
“Non-lawyers employed by the CPS should be able to present uncontested cases in magistrates courts”.
That recommendation was followed through and we now see regularly in magistrates courts caseworkers conducting straightforward, simple pleas and other less serious matters. However, the clause seeks to extend widely the ambit of those caseworkers. The concern is that that will inevitably lead to a reduction in the legal input in criminal proceedings. Trials of some serious offences could well be heard by lay magistrates without a legally qualified representative for either the defence or the prosecution.
The concern is that, given that designated caseworkers are not necessarily solicitors, barristers or legal executives, they are not subject to professional codes of conduct, nor are they required to fulfil the important duties to the court that those legal professionals fulfil. In addition, as officers of the court, those professionals have that vital independence that the designated caseworkers do not.
This is not a call for closed shops for solicitors, barristers or legal executives themselves, and it should not be seen in that light. It should be seen as an important defence of the principle of high-quality justice in magistrates courts. The caseworker’s role was recognised as limited and restricted by the Crown Prosecution Service in its annual report, and in debates in this and another place during the passage of the Crime and Disorder Act 1998. Then, Lord Meston reminded peers:
“The Royal Commission report which led to the introduction of the Crown Prosecution Service proposed that it should be set up in such a way as to recognise the importance of independent legal expertise in the decision to prosecute and to make the conduct of the prosecution the responsibility of someone who is legally qualified.”
He continued, and made the point clearly:
“The decision whether to commence or to continue criminal proceedings involves considerable responsibility, with implications for defendants, victims and the courts. Uncontested criminal proceedings in the magistrates’ courts are not necessarily trivial or straightforward...the liberty of the individual can be at risk”.
That is the concern about the clause. We are dealing with the liberty of the individual and with cases that victims want properly prosecuted, and the concern is that justice is being short-changed.
The criticism, quite rightly, is that the clause reveals a desire to get justice on the cheap. Where is the evidence that we need the extension? It seems to be based on financial reasons. The Government said that they intend to achieve
“maximum flexibility to allow optimisation of staff deployment across the courts”,
and
“to improve the case-building process with lawyers focused on sensitive, complex casework”.
That is management-speak. The Government talk about employment issues and the organisation of staff deployment; there is nothing about justice, or the importance of independent expertise when dealing with cases that involve the liberty of the individual, or properly prosecuting important cases for victims.
The measure seems to be a cost-cutting exercise that will inevitably result in a loss of confidence in the criminal justice system. There will be a greater risk of error, which in this context could mean a poorly contested or prosecuted case, to the detriment of victims and wider society. That would have a profound impact. I say cost-cutting exercise but there is no evidence of cost savings. It would be interesting to hear from the Minister whether any such evidence exists, because the results of a poorly prosecuted case could mean longer and more expensive trials in which there is no legal expertise to deal with matters appropriately and expeditiously. It might also lead to more appeals and increased court and knock-on costs.
The concern is also about the principle of equality of arms in the court process. The principle is applied in the European convention on human rights, article 6, on fair trials. Inherent in that is equality of arms when dealing with criminal justice issues. The clause may result in inequality of arms, however, with a defendant represented by a fully qualified barrister or solicitor of great experience and expertise, while the Crown’s case, representing the victim but on behalf of the Crown, is represented by a designated caseworker.
There are many fine designated caseworkers. I know and see them in Enfield magistrates court, and they do a fine job in Narey courts, proceeding with less serious cases. However, when they have to decide whether to continue with a prosecution, when there is complexity, or when there are issues about bail, they must defer to a Crown Prosecution Service lawyer who will reach a decision using their expertise, their duties to the court and their training, which has been gained not over weeks, but over years, to ensure that justice is properly served.
I do not wish to bang the drum on behalf of the Bar Council, the Law Society or the Institute of Legal Executives. I do wish to bang the drum for the victim sitting at the back of a court or a member of the public watching a court process. If they see someone who is no doubt doing the best that they can but find out that that person does not have the same qualification or experience, and is at a different level of expertise from the lawyer representing the defence, even if there is no determination about the legal niceties of equality of arms, surely they will feel that justice is not being done and that justice is going cheap. The Minister needs to tell us why the provision is necessary, referring not just to cost savings but to why it is needed as a matter of principle, considering the liberty of the individual and the proper prosecution of cases on behalf of the victim and society.
Where was the support in the consultation with interested organisations? The Magistrates Association does not support it, and nor do the Law Society, the Bar Council, ILEX or the Crown Prosecution Service. It is important to find out. In The Times on 16 July, it was noted that the Director of Public Prosecutions had
“insisted that he could not imagine any situation in which the case workers would be entrusted to handle cases where a defendant might go to jail.”
That will now be a reality. Has the DPP’s view changed, and, if so, why?

Charles Walker: I, too, am concerned about the downgrading of the legal and judicial system. There are many good Crown Prosecution Service lawyers out there who do a fantastic job on behalf of their clients, but I am afraid that there are also some fairly poor ones who do not provide adequate representation in a court of law. When they fail to do so, they deny victims the justice that they deserve; they deny the families of someone who has been killed in a road accident, for example, the closure that they deserve. I am concerned about anything that will create greater imbalance.
Given that there is already a weakness among some CPS lawyers, having people who are not even legally trained representing families in magistrates courts will present a host of problems. One of the main problems will be that if there has been a road traffic accident, for example, there will invariably be an imbalance in representation. The victim, or the family of someone killed in an accident, will invariably be the economically weaker party. They will be represented by the CPS or one of these paralegals, whereas the driver of the lorry or car will be represented by their insurance company, which will not want to pay out on any conviction. It is incumbent on all politicians to ensure that we do not have justice on the cheap and that we ensure that the victims of tragedy and crime get the best representation that we can possibly provide. The clause may deny them that representation and thereby deny them the justice that they invariably deserve.

David Heath: I do not want to repeat everything that has been said adequately and fully by the hon. Members for Enfield, Southgate and for Broxbourne, but I wish to express sympathy with their views. I see the provision not as a trade union or closed shop matter, but as something that affects the interests of justice in our courts system.
It is important that we ensure that all sides of a case—both the prosecution and the defence—are properly represented in court. There is at least a suspicion—I would say a real doubt—about whether that can be the case if relatively unqualified people represent the prosecution in an opposed case. Completely different questions apply in an uncontested case, but in a contested case it is innately wrong that we should put ourselves in such a position simply out of economic expediency, which can be the only argument in favour of the measure.

Maria Eagle: I am well aware of the strong feelings that the clause has excited, not just in the parties and in members of the Committee but in those outside who made representations, not least the legal profession, but also others. We heard evidence from the Magistrates Association. I understand the concern that has been expressed.
It may be helpful if I set out what clause 58 does and does not do, then deal with some of the points that have been raised. It amends the Prosecution of Offences Act 1985 to remove certain statutory exceptions that limit the types of cases and hearings in which Crown Prosecution Service designated caseworkers may be the advocate. The purpose of extending the designated caseworker remit is to enable them to conduct a wider range of proceedings before the magistrates courts—including, as hon. Members said, in summary trials.
There is no doubt that a balance has to be struck between efficiency and effectiveness in dealing with straightforward advocacy in the magistrates courts and fully protecting the rights of victims who are often represented by CPS lawyers and designated caseworkers—a point raised by hon. Members—and ensuring that the CPS does as effective a job as it can and obtains proper value for taxpayers’ money. There is always a balance to be struck in such matters, and there may be a slight disagreement about where that balance ought to be struck.

Charles Walker: In some cases prosecuted by the CPS, the family of the victim may feel that the lawyer has not prosecuted the case effectively or professionally. What options are open to the family to raise their concerns with the Home Office or the CPS?

Maria Eagle: I think that all of us who are or have been members of the legal profession would say that often, particularly when a case is lost, that clients are not happy with the advocacy in contested trials, whether of a barrister, a solicitor or—if the clause is accepted—a designated caseworker. However, the hon. Gentleman will be aware that there is no such thing as a negligence claim in respect of court advocacy. Qualified legal staff have professional rules and obligations. That brings me back to the important point raised by the hon. Member for Enfield, Southgate about regulation.
Other than making complaints, it is not possible to take negligence action against an advocate for not putting a case well enough. Many of us who have practised in the law have come across clients who would have done that if it had been possible, because they were not satisfied with what the barrister or solicitor had done, or with the way in which the case was presented or prepared. Of course, judicial proceedings are for the judge, and at the end of the day they have to be accepted or appealed.

Charles Walker: There are, as I said, good CPS lawyers, but all professions have people of variable quality—even our own profession or calling of politics. What mechanisms does the CPS have in place to monitor the performance of its barristers and solicitors to ensure that they are operating to the highest professional standards?

Maria Eagle: I shall comment on the current internal procedures of the CPS to ensure proper standards in respect of designated caseworkers. They would apply also in respect of the extension.
The hon. Member for Enfield, Southgate said that the CPS and the DDP do not support change. I have a letter from the DDP dated 4 October to Sally Dickinson, the secretary of the Magistrates Association. She said:
“In relation to Clause 58 of the Bill, you outline your opposition to the proposal and state, ‘We understand that the CPS does not favour this’. This assertion is not correct. The CPS and the previous Attorney General have sought this legislative change and have worked closely with the Ministry of Justice and Parliamentary Counsel in the drafting of the clause. I hope that I have now clarified the point and would ask that you amend your published response to reflect the CPS position.”
It is not the case that the CPS does not support the change. It does.

David Burrowes: I am grateful for that. I was seeking clarification on behalf of the Magistrates Association. In some ways that is a surprise. One would have imagined it to be toeing the line in supporting the Bill. When the DPP wrote to The Times to insist that he could not imagine a situation in which caseworkers could be entrusted to handle cases where a defendant might go to jail—

Maria Eagle: The DPP did not write to The Times. He was quoted in The Times, but not necessarily accurately. He certainly has not written to The Times to say that.

David Burrowes: To clarify, it was noted in The Times that that is what he said. Clearly the position is that under the clause caseworkers would be entrusted to handle cases in which a defendant might go to jail.

Maria Eagle: My understanding is that the DPP certainly did not write to The Times and say what the hon. Gentleman suggests. We all know of instances where quotes in newspapers have not been entirely accurate. That is as much as I can say in respect of this. That is as far as my knowledge goes. I would be happy to come back if I have misled the Committee. I think that that is accurate.

David Burrowes: If the quote is inaccurate, then that is so. But caseworkers would nevertheless be entrusted to handle cases where a defendant might go to jail.

Maria Eagle: It certainly is so in respect of the current proposal, where we are looking at contested trials within the magistrates court jurisdiction, which includes penalties of up to six months’ imprisonment. That certainly follows. It might help the Committee if I just say a little about the intention in all of this. The Committee may then agree or disagree on whether it is a good idea, but it might illuminate the discussion if I set that out.
The intention of the Crown Prosecution Service is to adopt a gradualist approach in deploying designated caseworkers to prosecute summary trials. Indeed, the DPP will, through the exercise of his powers under section 7A of the Prosecution of Offences Act 1985, impose internal restrictions that will govern the nature of the trials that designated caseworkers may be asked to undertake. I can also assure the Committee that only those designated caseworkers who have undergone an externally assessed training course will be permitted to appear before the magistrates courts and prosecute trials.
The clause will also enable designated caseworkers to appear before the magistrates court and have conduct of proceedings that relate to offences that are indictable only. Such proceedings would include those under section 6(2) of the Magistrates’ Courts Act 1980, which are often referred to colloquially before the courts as “paper committals” and are uncontested proceedings. The Committee may appreciate that these are now, in essence, more an administrative function but at present it is seen as a limitation that undermines the effective and efficient deployment of designated caseworkers.
Similarly, the clause will enable designated caseworkers to appear before the court for the administrative exercise of “sending” a defendant for trial to the Crown court. These provisions under section 51 of the Crime and Disorder Act 1988 are, again, uncontested and administrative in nature, and in the majority of instances this is not an effective use of a Crown prosecutor. The clause would also build on the experience of designated caseworkers who currently undertake bail applications on summary and either-way offences by extending their powers to include offences that are indictable only.
This amendment is necessary to enable designated caseworkers to appear in committal proceedings and “sending” proceedings where consideration of bail is a prerequisite. The clause will also enable a designated caseworker to undertake hearings that are referred to as “preventative civil orders”. As the hon. Gentleman hon. Member for Enfield, Southgate said, there are many ancillary civil orders that may now be made by criminal courts, and not always where there is a criminal conviction. These hearings take place either after the verdict of the court has been announced, were the verdict to be “not guilty”, or, when there is a conviction once sentence has been passed. These hearings, such as those for antisocial behaviour orders or those for restraining orders, are not classed as criminal proceedings. They are, in fact, civil proceedings and at present a designated caseworker may appear before magistrates courts only in criminal proceedings.
That is the extent of the clause. There is also the relatively rare case in which the clause will permit a designated caseworker to appear in proceedings where there is a notice of transfer issue under either section 4 of the Criminal Justice Act 1987 or section 53 of the Criminal Justice Act 1991. These matters are ordinarily now a rarity before the courts, but the clause would extend the power of designated caseworkers to appear in respect of those matters, too. I wanted to get on the record what the clause is proposing.

Nick Hurd: I listened very carefully the Minister, and this is one of the clauses in respect of which my constituents would have most difficulty in understanding the Government’s objectives. The Minister talked earlier about the need for a balance, and conceded that cost was clearly a consideration in those objectives. Will she share with the Committee exactly what cost savings the Government expect to make from the move, and say what evaluation has been made in respect of public opinion and the potential cost to the credibility of the criminal justice system?

Maria Eagle: I am speaking from relatively recent memory, but if the hon. Gentleman looks at the explanatory notes, he will see that a cost saving of £5 million a year is anticipated.
That we need our public services to be as efficient as possible is one consideration. Having said that, I understand the concerns that have been expressed in Committee, particularly by those hon. Members who have spoken in this debate. We want to reach as much of a consensus as possible with those who have expressed worries. Discussions of an exploratory nature are taking place with the Institute of Legal Executives regarding possible membership of that institute for designated caseworkers and the CPS training programme for designated caseworkers.

Nick Hurd: Having dealt so explicitly with the first half of my question, can the hon. Lady answer the second part about the attitudes of members of the public whom we represent? At the moment, they have a fragile sense of confidence in the criminal justice system. What tests of public opinion have been carried out about this dumbing-down of justice?

Maria Eagle: I shall be waved at if I am wrong, but as far as I am aware there have been no consultations with members of the public. We would not necessarily expect that at this stage. We certainly have not done any opinion polling or work of that nature in respect of the clause.

Philip Hollobone: That is not entirely surprising. If we set that answer in context, does it not reflect the Government’s policy in many different areas? In our classrooms, teachers are being—

Edward O'Hara: Order. We are departing from the business of the Committee.

Maria Eagle: I have tried to be open with the Committee about the fact that I understand fully the concerns that have been expressed. We are seeking an agreed way through with those who have highlighted their worries, particularly the legal profession. It is not our intention to deskill to the extent that people cannot have confidence in the workings of those who present cases in the magistrates court.
I shall reflect on the concerns that have been expressed and perhaps come back at the remaining stages of the Bill with some answers for those hon. Members who have drawn them to my attention. We do not want to put the provision in place in the teeth of the opposition of everyone, or of good sense; we want to take it forward correctly. We want to achieve a proper balance between that and allaying the concerns that have been expressed, particularly by the legal profession, about the implications of such a provision. On that basis, I hope that the Committee will allow the clause to stand part of the Bill.

David Burrowes: The Opposition are not convinced by the assurances that there might be some negotiations with ILEX about training, quality or representation. We have already debated the fundamental principle that is at stake, the heart of which is that—given the percentage of criminal cases that might take place in the magistrates court—the majority of the public will be worried that the clause will lead to cases being delegated to laypeople who are not properly qualified to carry out such tasks, however sincerely they perform them. In the interests of confidence in the criminal justice system, I invite the Committee to vote against clause stand part.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 6.

Question accordingly agreed to.

Clause 58 ordered to stand part of the Bill.

Clause 59

Provisional grant of right to representation

David Burrowes: On a point of order, Mr. O’Hara. Is it appropriate to consider clauses 59, 60 and 61 together, as they all deal with criminal legal aid?

Edward O'Hara: If it is convenient to the Committee to do it that way, I am perfectly happy to do so.

Question proposed, That the clause stand part of the Bill.

Edward O'Hara: With this it will be convenient to discuss clauses 60 and 61 stand part.

David Burrowes: I do not want to take up the Committee’s time for too long with the issue of legal aid. I should declare an interest as a legal aid practitioner. I have three matters to address. The intention behind the clauses is one to sign up to—ensuring that representation orders are put in place early, at the time of investigation and before a formal charge has been made.
My first question to the Minister is whether clause 59 is concerned with saving costs by ensuring that representation orders do not involve double-counting. At the moment, claims are made for police station work and for work undertaken in the courts. Where a case comes within a representation order ambit, it then falls on a standard fee scale, which by implication limits the costs concerning police station and court work. Is that right, or is the clause concerned with ensuring that representation orders are granted early to allow the administration of justice to proceed promptly?
My second point relates to clause 60. I welcome it, as representation orders are often blocked because information about passportable benefits does not proceed quickly to the courts. I seek an assurance that the necessary technology and administration exist for courts in England and Wales to implement clause 60.
My third point relates to clause 61 and the pilot programme. This Government are, in many ways, addicted to pilots—they occur in various areas, and evaluations are eventually published. Although it is welcome that before proceeding with changes to criminal defence funding, the Government wish to test them with pilots, is it not more appropriate to listen to practitioners about legal aid matters? One such area is means testing. If the Government had listened carefully to practitioners’ concerns about the problems that might flow from an over-bureaucratic means-testing regime, there would not have been the difficulties that ultimately needed to be dealt with by way of additional directions and regulations to amend the legislation. I do not object to pilots in any way, but they are not always needed if there is proper consultation, such as with practitioners in the criminal defence service.

Maria Eagle: I hope that I can reassure the hon. Gentleman. The purpose of clause 59 is primarily to speed cases up by granting representation at an earlier stage in appropriate instances. Things can move faster if a delay to enable the defence to obtain legal aid is avoided.
Thought needs to be given to the specific conditions that govern provisional representation orders, including the possible triggers, the type of work, the appropriate level of representation, the authority to undertake such work, and the correct fee structure. Those matters have not yet been decided on. An order might be particularly helpful in certain types of case such as fraud cases, in which considerable work has to be undertaken before charges can be brought. It might speed cases through the court process, and that, rather than sneaking people into existing fee structures, is the aim of the clause. It will increase the defence’s capacity to deal with the case by ensuring earlier representation.
The information gateways are about trying to improve the existing arrangements to ensure that the application process can highlight those on passported benefits swiftly and speedily. The intention is the same: to try to speed court processes. There have been instances in which delay has resulted from, for example, someone being remanded in custody without knowing their national insurance number. Many people can remember their national insurance number, but not everyone. That can cause delay that would be avoided if the gateways work as we envisage. The gateways are not rocket science. We are not inventing some entirely new way of doing things, so they should be workable. Obviously, the relevant data protection safeguards would be needed.
The hon. Member for Enfield, Southgate said that the Government are addicted to pilots. That is because we believe in evidence-based policy making rather than prejudice-based policy making, or in hoping that what one thinks will work will actually work in practice. It is after 3.30 in the afternoon now, so I am waking up again!
Clause 61 deals simply with a slight problem in the existing power that allows for pilots. We want to make it a bit clearer that pilots can be localised rather than having to relate to the entire system. Pilots are about learning the lessons more effectively by trying out policy change first, instead of implementing it across the entire piece, crossing one’s fingers and hoping that it will work because one thinks that it will. I hope that that reassures the hon. Gentleman and that he is therefore content for the three clauses to stand part of the Bill.

Question put and agreed to.

Clause 59 ordered to stand part of the Bill.

Clauses 60 and 61 ordered to stand part of the Bill.

Clause 62

Compensation for miscarriages of justice

Question proposed, That the clause stand part of the Bill.

Harry Cohen: The clause deals with compensation, and I should like to make a few points on it. It will reduce the limitation period for compensation for miscarriages of justice to two years and impose an upper cost limit. I have some concerns about those measures.
A Ministry of Justice press release equated compensation for the victims of miscarriages of justice to compensation for victims of crime, as though they were comparable or set against one another. However, in reality, there are significant differences between the two. A victim of crime should receive proper compensation, but the person who did it should bear the cost. The state bears the cost, through the Criminal Injuries Compensation Authority, but civil action can be taken against perpetrators of crime, who may end up paying damages. The state deals with miscarriages of justice, which is completely different. By the way, the assertion in the press release was that if we reduce the amount given to the victims of miscarriages of justice, we could increase the amount given to victims of crime, which is not the case. Without actually saying so, the press release implied that the victims of miscarriages of justice are unworthy and that they are almost the criminals.

David Heath: That they are guilty, really.

Harry Cohen: Yes. Whether that has resulted in the reduction of the time limit to two years, or the opposite, it is not the right approach in my opinion. Some victims of miscarriages of justice have suffered terrible consequences—some have had their lives ruined or even foreshortened, so it is not right to compare them to the victims of crime.
A more appropriate comparison, which was made by Liberty, would be with civil court processes for damages claims. Those processes have a six-year period in which they permit the bringing of civil actions, and it would be appropriate for that to apply to the victims of miscarriages of justice. That view is shared by Liberty.
I am also concerned about the upper limit that will be imposed. In some cases, especially the ones in which people’s lives are badly affected, there is a case for ensuring that the compensation reflects the entirety of the damage caused. The actual amount could be quite a low proportion of that, which would be a matter of concern. I wanted to take the opportunity provided by a clause stand part debate to signal my concerns about the measures.

David Heath: The hon. Member for Leyton and Wanstead is absolutely right to draw attention to his concerns about the clause. It is preposterous to suggest that reducing the availability of compensation for the victims of miscarriages of justice somehow rebalances the scales between the victim and the perpetrators, which is how the Government often like to portray it. We are not talking about perpetrators when we talk about the victims of the miscarriages of justice—we are talking about victims of the state. Such people are victims of the worst possible manifestation of state action short of judicial execution; which is to say that they are deprived by the state of their liberty without cause, wrongly.
It is entirely inappropriate for there to be—either in the Government’s mind or as presented to the public—any linkage between the unfortunate victims of crime and the unfortunate victims of a miscarriage of justice through the courts. As the hon. Gentleman says, absolutely correctly, no linkage exists in reality. We are not talking about a common fund. The money does not come out of a fixed pot so that in order to reduce the compensation available for miscarriages of justice, the position of victims of crime must be enhanced—that is simply not the case.
I greatly deprecate the reductions in the criminal injuries compensation fund. It is wrong that we are so parsimonious in that respect. For heaven’s sake, let us not say that as a result of that we must also fail to compensate people for depriving them of their liberty, which is what the Government intend to do in this respect.
The courts have proper discretion in the area, and that should not be limited in the way that the Government suggest. What I said, sotto voce and from a sedentary position when the hon. Gentleman was talking, is that there seems to be an underlying view in the Government’s proposals that someone who is a victim of a miscarriage of justice is really a guilty party. That person may have got out of prison, but they still “really did it, didn’t they”, and therefore they are not worthy of proper compensation for the actions that the state took in depriving them of their liberty. I do not accept that argument for a moment. If somebody is innocent, they are innocent——both in the eyes of the law and in the eyes of the Executive. The arrangements for their compensation should not be attenuated to take account of some notional prejudice within the system.
My argument is simple. I do not think that we should have this artificial limitation, as it would not reflect the genuine injustice that has been perpetrated. If there is a deficiency in the criminal injuries compensation scheme—and I believe that there is—we must look at that. That is where we should concentrate proper resources, so as to make it more effective in dealing with the victims of crime who should undoubtedly be better compensated than they are currently in the absence of proper reparation from the perpetrator.
Finally, I agree with the hon. Gentleman that the right person to compensate a victim of crime is, where possible, the criminal. However, we must accept that there are instances in which that is not possible, and that is the role of the state.

David Burrowes: I endorse the remarks of the hon. Members for Leyton and Wanstead and for Somerton and Frome. My concern is to avoid getting into a press-release type of debate—that the clause is all about rebalancing the criminal justice system agenda; plainly it is not. That does not make sense. We are all concerned about the victim, and we should all be concerned about justice. Justice shows its face in various areas. We want justice for the victim and we want to ensure that those who are found guilty are properly prosecuted and sentenced appropriately.
None of us supports miscarriages of justice. They do no good to the person who is a victim of one, and furthermore, the victim of the offence itself will not be assured that justice has been served by that miscarriage of justice. It is wrong to use the clause to seek to equate and bring into line those who have been the victims of miscarriages of justice with other victims. For the Government to introduce this legislation on the basis of bringing compensation for the wrongly convicted into line with that for victims of crime, is the wrong approach. We need some assurance from the Minister that that is not the rationale behind the clause, but I doubt that we will be convinced.
Presently, there is no time limit for making an application for compensation in respect of a miscarriage of justice, so applications can come before the Secretary of State many years after the convictions have been quashed. Why is that inappropriate, and why should there be a two-year limit? Why has that period been chosen? Why has the Government set the limit of £500,000? Is it really about wanting to bring it into line with claims made by victims of crime? Surely, that is not an appropriate rationale. Surely, the position is that those who are the victims of a miscarriage of justice should be looked at in their own right. They will not be able to take any civil action, and that is why there is good sense in the original, existing scheme, whereby the assessment of damages for a miscarriage of justice is governed by the assessment of damages for civil wrongs. The position was that assessments sought to put the applicant back to the financial position in which they would have been had the miscarriage of justice not occurred. That is the good sense of the original and existing provisions.
The Government have sought to create an artificial barrier with regard to the time limit and the amount to be paid out to try to justify that “rebalancing of justice” exercise. That is wholly wrong. The only agency that is in a position to right that wrong is the state, which should certainly accept the responsibility to put the individuals concerned back in their original position in reasonable terms. The cap that has been put in place is wholly arbitrary, and there is no justification for it. Indeed, the state has no justification for escaping its responsibility to compensate the victims of the mistake. Only the state is in a position to correct it, and that needs to be done wholly and reasonably without any artificial levels.

Maria Eagle: Is the hon. Gentleman suggesting that we are seeking to escape that obligation? We are not seeking to abolish the statutory scheme, but to place limits with regard to time and overall payout.

David Burrowes: I am saying that the state is evading its full responsibility by not compensating the victims of that mistake. It is seeking to impose this level of £500,000 across the board, regardless of the circumstances that have allowed an individual to become the victim of a miscarriage of justice, and evade the need to put them back into their previous position. The clause challenges the Government about their whole view of justice and the principle of justice. It is for the Government to justify how they can rationalise those levels on their responsibilities.

Maria Eagle: Clause 62 makes important amendments to section 133 of the Criminal Justice Act 1988, which provides compensation for miscarriages of justice. As my hon. Friend the Member for Leyton and Wanstead said, it introduces a time limit for making an application and clarifies the position on eligibility for compensation when a conviction has been quashed but a retrial is pending. It changes the way that compensation is assessed and introduces limits on the overall amounts of compensation payable and the amount payable for lost earnings.
I do not for a moment argue that those who suffer a miscarriage of justice are anything other than victims, but a victim of a miscarriage of justice receives, on average, 50 times more compensation than a victim of a violent crime, and we do not believe that that is right. Substantial compensation for miscarriages of justice will still be payable in appropriate cases in accordance with our international obligations. We are not seeking to evade our obligations, but to place reasonable limits on the time and the amount that can be paid out.
Section 133 of the 1988 Act fulfils our international obligations to pay compensation. The Secretary of State decides on eligibility and an independent assessor then decides the amount to be paid as part of the statutory scheme. In relation to that, the hon. Member for Somerton and Frome was slightly wrong when he said that the court should have discretion; it is a statutory scheme, but an assessor makes the decision, rather than the court. Section 133 sets out some of the things that the assessor must take into account when making an award. It is not exhaustive and has not been changes for more than 10 years.
Hon. Members might remember back to 19 April 2006, when the then Home Secretary, my right hon. Friend the Member for Norwich, South (Mr. Clarke) announced a number of immediate non-legislative changes to the compensation schemes and signalled his intention to legislate in the terms set out in the clause.
Currently, there is no time limit on making an application for compensation. That brings the same problems as any assessment process that does not have limitations. It means that sometimes applications are made many years after a conviction has been reversed. That, in turn, has all the usual problems associated with delay: papers and other important documents might not be available, thus making it difficult to make proper and fair decisions, beyond reasonable doubt, about whether there has been a miscarriage of justice.
The clause introduces a two-year time limit for making an application for compensation. The two-year period will run from the date that the conviction is quashed or a pardon granted. It will not run from the date of conviction, so there is no reason why it would put the individual at any disadvantage that cannot be overcome. In exceptional circumstances, an application made outside the two-year limit may be regarded as having been made in time. Exceptional circumstances in this context might include the physical or mental incapacity of the applicant. Ignorance of the existence of the compensation scheme would not be regarded as an exceptional circumstance. The period of two years has been chosen because that is the period for making a claim to the Criminal Injuries Compensation Authority. That seems like a reasonable period to set as a limit.

David Burrowes: I am grateful for that information on the reason for the two-year limit, but it is not convincing. At present, there is no time limit and the assessment of damages is done on the same terms as a civil action. The fact remains that the victim of a miscarriage of justice does not have recourse to civil action. In terms of time limits, those for civil action would extend beyond two years. The argument for a two-year limit is not convincing.

Maria Eagle: It is perfectly open for any individual who has been the victim of a miscarriage of justice to bring civil claims if they wish, but the statutory scheme is separate.

Edward Garnier: Does the two-year limit start from the date of the miscarriage or the date of the release of the individual from prison?

Maria Eagle: I thought that I said that, but I may have been talking to myself. The two-year time limit runs from the date that the conviction is quashed or a pardon granted, rather than from the date of conviction. In that respect, we believe that it is a reasonable time limit. It equates to the time that one has to make a claim to the Criminal Injuries Compensation Authority if one is a victim of crime.
In approximately a third of the cases in which a court of appeal quashes a conviction, a retrial is ordered. At present, it is technically possible for an application for compensation to be made pending a retrial. It is doubtful whether the compensation would ever be payable because, pending a retrial, it would not be possible to say that a miscarriage of justice had been established beyond reasonable doubt. For the avoidance of doubt, the clause will make it clear that an application for compensation can be considered only when the issue of a retrial has been resolved. That seems a sensible arrangement. The date on which the acquittal at retrial occurs or on which the prosecution is formally not proceeded with is the date when the time limit for making the application will begin to run.
On assessing the compensation, under the current provisions, the assessor can take account of other properly secured and unquashed convictions and reduce the non-pecuniary element of the award if he thinks it appropriate. By the way, we hope that our assessor, Lord Brennan, is recovering very well from his mishap the other day. Apparently, he has asked for some work to be sent to him, so he is clearly not going to be stopped by what happened. We all wish him well, although it sounds like he is fighting fit anyway.
The Bill will enable the assessor to make deductions in respect of other convictions or contributory conduct from the whole award, not just the pecuniary element. Such cases where the award might be reduced include where the applicant has unspent convictions or was drunk and provoked a fight that subsequently led to an unsafe conviction. That is in line with the way in which victims of crime have deductions made from compensation awards in such circumstances.
I want to deal with the point made by Committee members about whether it is right to limit awards of compensation in terms of time or overall pay-out by referring to several cases that have been processed. I will not mention any names and I do not want Committee members to think that I am suggesting that all those who are properly compensated for miscarriages of justice fall into the category of cases that I am about to set out. It is absolutely clear that in some circumstances it is completely right for people to be compensated up to the highest possible level after convictions, but in some cases it is clearly wrong that people can receive the level of compensation that has been received.
Let us consider, for example, a man convicted of a series of sexual offences against children. Convictions for offences in relation to one of those children were quashed on appeal, but all the other convictions stood. He was awarded £27,000, whereas the tariff award for a victim of rape would be £11,000. A man convicted of—
 Mr. Garnier rose—

Maria Eagle: I will give way to the hon. and learned Gentleman after I have set in context one of the reasons why the Government feel that this measure is the right way forward. A man convicted of smuggling offences for which he was fined and ordered to pay costs—there was no term of imprisonment—was awarded more than £2 million. Under the current scheme, a victim of crime could receive no more than £500,000, no matter what the circumstances or the extent of the suffering that resulted from that crime. There is the case of a man convicted of fraud offences whose conviction was quashed after he had served seven months in prison. Interim payments of more than £500,000 have already been paid. Claims totalling several million pounds are under consideration. Those are the real cases that prompt—

Edward Garnier: Will the hon. Lady give way?

Maria Eagle: If hon. Members let me get to the end of my sentence, I will give way. These are the types of circumstances in which my right hon. Friend the Member for Norwich, South, when he was Home Secretary, made the statement that he did in April 2006 and set in train the changes that are now before us in the Bill. There are real issues to be resolved.

Edward Garnier: I am sorry that I disturbed the hon. Lady’s paeans of prose. Those are very interesting figures, but they do not mean very much because we do not know anything about the background to the cases. Let us take the case of the man who had been wrongfully convicted of one of a number of sexual offences. We do not know whether the compensation was for a lengthy period in prison in relation to that offence. The other seven or eight or whatever it was offences might have led to cautions or some other non-custodial disposal.
In relation to the customs offence, I think that the figure was something like £1 million for the wrongful conviction. We do not know what damage was done to the man or woman’s reputation or what loss they suffered as a consequence of being arrested and convicted. They could have lost their job. They might have been a hedge fund millionaire doing quite nicely down the road when their career was blighted for ever.
In relation to the man convicted of sexual offences, we should bear it in mind that it would have been perfectly possible not to compensate him at all if all that he was seeking compensation for was loss of reputation, because he does not have a reputation for being anything other than a sex offender. The acquittal for one does not really absolve him of the reputation for the others. There are all sorts of practical solutions to deal with the hon. Lady’s point without doing what the Government propose.

Maria Eagle: I understand the hon. and learned Gentleman’s point, but it is public money that is being paid out. We do not resile from the fact that payments should be made under section 133—we are not seeking to put a stop to the statutory scheme—but it is perfectly reasonable to balance those requirements against what happens to victims of crime. All our constituents will believe that it is reasonable to do that. I accept fully that Opposition Members may not feel that this is the right way forward, but it is perfectly legitimate that Government Members argue that it is.

Charles Walker: The hon. Lady is right—it is perfectly legitimate to have a debate about the issue. No one here would deny that. However, someone has recently been arrested for the murder of a young girl many years ago—Lesley Molseed. A few years ago, gentleman called Stefan Kiszko who matched the profile was fitted up by the police. He was a simple chap and awkward. He spent 16 years in prison being violently beaten for a crime that he did not commit. After 16 years, he was released. Indeed, I understand that the Molseed family had started campaigning for his release because they realised that the conviction was unsafe. I do not understand how we can set an arbitrary limit of £500,000. Today, the money would not begin to compensate a man for spending 16 years in prison, wrongly convicted of killing a child, with the brutality that such a person would experience in prison and the difficulties that he would experience after release.

Maria Eagle: I understand the hon. Gentleman’s point, but all the cases that I can cite that appear to be undeserving—I accept what the hon. and learned Member for Harborough said about not knowing all the circumstances; I do not seek to point the finger at any one individual—have taken advantage of the scheme as it is. I do not suggest that they should not seek to do so, but the point is that we not believe that the scheme is properly balanced, and that is what we are about.
I do not seek to suggest that a case such as that mentioned by the hon. Member for Broxbourne, which has been in the news lately and which we have been aware of for many years, is not at the other end of the spectrum—deserving is not quite the right way of putting it, but the hon. Gentleman knows what I mean—of how deserving an individual is. However, it is perfectly legitimate, and within the requirements of clause 133 and under our national obligations, to limit compensation for victims of miscarriages of justice. We argue that it is a proper limit, and that any comparisons that we make about how the system deals with victims of crime are legitimate comparisons to make.

Edward Garnier: Surely, the simple point that the Minister wants to make is that the Government cannot afford it. If she made an argument based on something as intellectually honest and simple as that, we would understand, but when it is dressed up with all that other stuff it makes the argument more difficult to understand or believe.

Maria Eagle: I am sorry that the hon. and learned Gentleman feels that I am simply dressing up the argument that the Government cannot afford it. That is not where the changes have come from. If he were to look back at the statement made by my right hon. Friend the Member for Norwich, South in April 2006, he would see that the changes arose out of concerns that were expressed at length in that statement. It is not simply a matter of cost, but of fairness. The way our constituents view matters is another legitimate point to take into consideration. I fully accept that Opposition Members have a different view, and that is perfectly legitimate, but I have put forward our reasoning for the changes. I hope that the Committee will accept the clause.

Question put, That the clause stand part of the Bill:—

The Committee divided: Ayes 9, Noes 6.

Question accordingly agreed to.

Clause 62 ordered to stand part of the Bill.

Clause 63 ordered to stand part of the Bill.

Edward O'Hara: We are about to embark on part 6 of the Bill, which is a natural break. The next clauses will give rise to much debate and some people in the room have not had a chance to stretch their legs, so I propose that we should have a comfort break until 4.35 pm.

Sitting suspended.

On resuming—

Clause 64

Possession of extreme pornographic images

Harry Cohen: I beg to move amendment No. 184, in clause 64, page 45, line 17, leave out ‘appears to have’ and insert ‘has’.

Edward O'Hara: With this it will be convenient to discuss the following amendments: No. 185, in clause 64, page 45, line 20, leave out ‘appears to have’ and insert ‘has’.
No. 186, in clause 64, page 45, line 27, leave out ‘it appears that’.
No. 187, in clause 64, page 45, line 33, leave out from ‘which’ to end and insert
‘results in a person’s death or a life-threatening injury,’.
No. 188, in clause 64, page 45, line 34, leave out from first ‘in’ to end.
No. 189, in clause 64, page 45, line 36, leave out ‘or appears to involve’.
No. 190, in clause 64, page 45, line 38, leave out ‘or appearing to perform’.
No. 191, in clause 64, page 45, line 40, leave out ‘or appears to be’.

Harry Cohen: The amendment relates to a series of clauses that increase the criminalisation of extreme pornography. I believe that the general test in matters sexual should be consent. That does not apply in every case; where harm is done, an argument can be made that that overrides consent. It should be the general rule, however.
I have no objection to the clause in so far as it concerns acts that have actually taken place, such as if extreme violence has in fact caused suffering, pain or death. My difficulty is with the words “appears to”, which appear throughout the clause, and which create too wide a gap. They would criminalise people that should not be criminalised, and would create injustice in a number of ways.
Let us be clear that the acts that are the subject of the clause are unpleasant—or appear to be. I am sure that Committee members would not like them and that neither would the overwhelming majority of members of the public. However, there is a distinction between practices that are unpleasant to a majority of people and those that are or should be made illegal. That is why child pornography is illegal, and properly so, as well as because consent is impossible in relation to it.
The clauses in this part of the Bill, however, concern practices that in some cases are actually quite well established between adults—albeit they might be practised in secret or in private. In preparing this speech, I had a choice about whether to go into detail on some of the acts themselves, which the Committee members might have liked on the basis that it would allow them to analyse things. I think that the Committee will be delighted to know that I decided not to do that. The other option was to cite various quotations, and that is what I shall do.
The first quote is from our esteemed friend the former Prime Minister. On 5 September 2006, he said that:
“there are areas in which the State, or the community, no longer has a role or, if it does have one, it is a role that is completely different. It is not for the State to tell people that they cannot choose a different lifestyle, for example in issues to do with sexuality.”
I think that that is a very good quotation from my friend the former Prime Minister, and we should take it on board.
Even more relevant is a quotation from Mary Warnock, who has a lot of prestige as a great moral thinker in this country, and a great record. In a recent articlein The Observer, she wrote:
“Men and boys have enjoyed pornographic images for years, heterosexual and homosexual, but that they feed their fantasies does not imply they will turn them into reality. They may or may not, depending on, for example, their wider social attitude towards women (or other men), their grasp of reality, the strength of their moral convictions and their depth of civilisation and dignity...Modern technology is capable of creating a convincing account of something that never happened. Enjoying an obscene story may be deplorable and show a sinister imagination, even one that is deranged, but it ought not to constitute a legal offence...The law must reflect this moral repugnance. But it must also apply fairly, drawing distinctions between those who have committed crimes and those who have been merely attracted towards them. A man must show guilty intent before he can be convicted and there is a difference between intention and fantasy.”
Her last point was:
“We should not use the force of law against a man’s thoughts, but only against his actions.”
That is a very good backdrop for our discussions. I tabled the amendments, which delete these “appears to” aspects, at the behest of the organisation Backlash. Deborah Hyde of Backlash wrote to me in connection with the matter. She says,
“In summary, the issues that arise from the proposal are as follows. The proposal has the potential effect of criminalising a much larger number of people than intended. Hundreds of thousands, if not millions, currently engage in non-abusive consenting sexual activity in the UK. It appears likely to particularly affect the lesbian, gay and bisexual community.”
Deborah Hyde goes on to say:
“The proposal will hamper efforts by responsible organisations to educate people about safe and consensual BDSM—bondage, discipline, domination and submission and sadomasochism—practices. This could result in real harm. That is people being injured or dying through accidents. Some will doubtless find such material abhorrent or offensive. However, sending people to prison on grounds of taste is not consistent with the values of a free and fair society. Including people who look at or engage in non-abusive consenting activities on the sexual offenders’ registers will dilute its effectiveness.”
She adds:
“The definition of extreme pornography is vague and, therefore, can only be determined once brought to trial, so people will not know if they are breaking the law at the point at which they view material. This makes for unclear law and, therefore, bad law. The evidence to date does not support the conclusion that such material encourages violent behaviour, as the Government have noted. In fact, there is evidence that access to pornography leads to falls in levels of violent behaviour.”
That is obviously very controversial. She continues:
“The breadth of the proposal will make illegal the possession of a wide range of currently legally published material, material that is not clearly illegal under the Obscene Publications Act, criminalising large numbers of people who have bought such material legally. The Government admit that the proposal breaches articles 8 and 10 of the European Convention on Human Rights. Their justifications are unlikely to meet the convention’s requirement for such interference.”
Deborah Hyde goes on:
“Does this material encourage violent or abusive behaviour? No. The Government admitted in their consultation paper that the evidence does not support this claim.”
She then adds:
“It is also worth noting that producers seem, in general, to employ actors on a regular basis who reappear unharmed despite the serious injuries that they have appeared to suffer previously, again demonstrating that no real harm has taken place. There is a critical difference here from the production of paedophile material, which cannot by definition involve consent and is therefore always abusive. Isn’t the material already illegal to publish under the Obscene Publications Act?”
That is a point the Minister made in our pre-hearing. Deborah Hyde said:
“No. This is very misleading. The OPA’s conviction threshold is far more demanding. The prosecution must show that material would deprave and corrupt someone who saw it, whereas proposed legislation only requires proof that the material depicts certain actions and is intended to arouse. The lower threshold means the proposal would likely catch material that would not be found illegal under the OPA.”
Deborah Hyde then asks what is the definition of extreme pornography and notes:
“It is unclear or subjective or both.”
Deborah Hyde asks whether the Bill will affect only a small number, and states:
“An estimated 10 per cent. of the adult population have this orientation, up to 4 million people. Various surveys have found that a much higher percentage of people have at some time engaged in some form of BDSM activity.”
I do not know whether that is true, but that is one category of people who will be affected.
Goth community material features depictions of death, vampirism and so on that could easily be counted as pornographic under the proposed definitions. People who own low-budget thrillers and horror films could be included.
Deborah Hyde states:
“The legislation will particularly undermine the BDSM community which allows individuals with similar interests to get together and offers advice and education on consent and safe practice. Proper supervision and education is crucial to preventing tragic accidents such as that which befell Stephen Milligan, MP. Does it matter if more people are caught by this proposal? Yes, it is a serious concern because it would swamp the sexual offenders register and result in more convictions and more police time used.”
Deborah Hyde states:
“On the Government’s own consultation, the Government cited 220 individuals against, 90 in favour; 18 organisations against, 53 in favour, of which 21 were police forces.”
So the majority actually were against.
Deborah Hyde states:
“Much has been made of the 50,000 who signed the petition organised by Martin Salter and the Jane Longhurst Trust.”
But the scope of that petition was much narrower than the current proposals. She says that
“signatories were invited to oppose ‘extreme internet sites promoting violence against women in the name of sexual gratification’. Anyone would object to material ‘promoting’ violence against women (as would this document).”
But comments in much of the press as well as responses to the proposal on forums such as the BBC discussion boards suggest that most people do not support the much broader prescriptions in the proposed legislation. She concludes that sending people to prison on grounds of taste is not consistent with the values of a free and fair society.
I quoted Liberty extensively earlier. It states:
“The regulation of pornographic images is an extremely emotive issue for many people. Views range from those who believe possession of pornography involving non consensual coercion should not be an offence to those who consider that all pornography should be forbidden. Liberty subscribes to neither of these”.
That is the bind that the Minister finds herself in as well. There are all sorts of views right across the range.
Liberty goes on to state:
“We agree that legitimate and proportionate legal restrictions on pornography, including criminal offences of possession, can be justified in a democratic society... certain forms of pornography should be a criminal offence”,
and, again, child pornography is obviously included.
Liberty states:
“The fact that many people find pornography morally offensive, damaging or worthless is not a good reason in itself to outlaw possession. Extreme caution should be exercised when new criminal laws are imposed with the intention of imposing a subjective opinion of what is morally acceptable.”
Again, it signals the point about what appears to be real creating problems.
Liberty states:
“some pornography involves willing participants suffering ‘real’ injury through BDSM acts. While there is a requirement that the injury be ‘serious’, this is not defined. If ‘serious’ is equated with the level of injury covered by the offence of Grievous Bodily Harm...it would cover non permanent cuts and other relatively minor injuries. The fact that the offence would also cover images that ‘appear to be real’ makes it even more problematic...the offence would appear to catch footage which is no more ‘real’ than the depiction of a violent sexual assault or murder in a classified film.”
The next person I want to quote is Yaman Akdeniz, who is a senior lecturer of law at the school of law at the University Leeds. He complains about the consultation, and that the Government inserted the clause just four days after that consultation. He supports my amendment, and says:
“Just to give a short example, it is not acceptable that one person could be imprisoned for up to two years for having in possession a sexually explicit image of someone looking dead, realistically pictured, but not really dead. In such a scenario involving pseudo-necrophilia there is no harm in the production or consumption of such content”.
He says that the Government do not have such a compelling interest in criminalising such content as they do in the case of child pornography. He states that the Government’s
“decision to criminalise the possession of extreme violent pornography is based solely on moral and political grounds rather than on public safety. Private morality has not been seen as a proper field for Government meddling since the time of the Woolfenden report and that position was reiterated by the Williams report in 1979. Aside from the reasons given in those reports, the Government should respect the growing diversity in society and the fact that there are wide differences in moral outlook and practices. So long as they do not cause proven harm to others, the Government should not interfere.”
I could quote a legal opinion from a respected QC, Rabinder Singh, a member of the Matrix chambers. I will not quote it because of the time, but it covers many of the same points, and more, and it shows that there will be a legal challenge if the Government push ahead with the Bill.
I shall give one last quote, which is on the same piece of paper as the quote from Tony Blair, but this one is anonymous. I do not usually give anonymous quotes, but it summarises the matter quite well. It comes from The Guardian’s website, and states:
“Any porn that involves harming or coercing anyone in its creation should be illegal - but it already is.
This is about criminalising images in which no-one has been coerced or harmed in their creation. We have the ludicrous situation where creating the image could be entirely legal but viewing it gets you treated like a paedophile.
I suspect a lot of people are happy to see it banned not because it does any harm (there's no evidence that it does) but because they think it's just a bit horrible. Pretty much the same argument used to keep homosexuality illegal for most of the 20th century, in fact.”
I think I have made the case.

Charles Walker: Thank you, Mr. O’Hara, for calling me to speak on this important part of the Bill.
I am aware that the clause was inserted after a campaign by Mrs. Liz Longhurst, whose daughter was tragically and violently killed by a deranged lunatic. I am also aware that her Member of Parliament, the hon. Member for Reading, West (Martin Salter) has been closely involved in the campaign, and that 50,000 signatures were secured in support of the clause. However, we are not in Parliament to legislate on the basis of one tragic case, difficult as that is. On the whole that does not make for good legislation but, as a parent, I am hugely sympathetic with the Longhurst family in their loss.
I have a number of questions for the Minister, and I know that the clause is difficult to navigate. If the Minister cannot answer my first question now, he could do so when winding up. Why is extreme pornographic violence worse than any other extreme violence? The Bill says that extreme pornographic violence is
“serious injury to a person’s anus, breasts or genitals”.
Why is that more serious than vivid images of people having their eyes gouged out, or their faces burned off by a blow torch in films on general release? Those injuries are just as appalling and disgraceful as any injury to the parts of the body which were previously mentioned.
The clause will create the strange scenario in which it does not cover films on general release. If one had a copy of a film on general release which contained extreme acts of violence, one would not fall victim to breaking the law; however, if one downloaded clips of that film on general release and had them on one’s PC, one could fall foul of the legislation and be eligible for a significant period of detention in prison. That is a contradiction.
I raised those concerns on Second Reading, particularly in relation to a film called “Hostel 2”. The director, a guy called Eli Roth, took great exception to my observations and said that I was trying to ban his film. Of course, I was not. I was just trying to demonstrate the contradictions between his film, which is on general release and shows periods of extreme torture, being granted an 18 certificate, and someone who had stills of that film on their computer, which were deemed to be for pornographic purposes, who could spend five years in prison. In defence of his film, Mr. Roth says that I had it wrong, and that it showed only 30 or 40 minutes of extreme violence—just 30 or 40 minutes in an hour and a half.
I shall not continue a war of words with Mr. Roth, because Tory MPs tend to come off second best when they take on people in the media and the film world. We are portrayed as fuddy-duddies, and that may apply even to Labour Members. If Mr. Roth wants to make films about women being graphically tortured, and if he wants to make films that break the taboo of children being murdered, which his film does, that is fine by me. I am sure that he can live with his conscience, and that he spends his money how he wants. But I think that civilised, decent, honourable, caring and compassionate people like us have the right to raise our concerns without being shouted down.
There is a far too casual approach in society to violence. We in this place should legitimately debate violence and our approach to it, and perhaps return to the discussion in a separate Bill entitled, “Possession of Extreme Violent Images”. Let us be honest: in the media over the past year, there have been several horrific cases of murder in which a person has been detained against their will by gangs or groups of people and brutally tortured in ways that Mr. Roth’s films depict very graphically. There are huge similarities between the two. They were not sexually tortured, but they were tortured in a vile and violent way.
Therefore, as Members, we should consider the issue in the round. I do not think that pornographic torture is any better or worse than the extreme torture that I have described, so I hope that we can reflect on this aspect of the Bill, organise cross-party discussions about how we can introduce a Bill that would set new parameters of acceptability in society, and start to roll back the appalling levels of violence that we so often see depicted in films and on television.

David Heath: This is an extremely difficult aspect of the Bill, not simply because of the subject matter, but because of the difficulty of getting the law right. There are conflicting pressures on legislators and the Executive, but there is also a great deal of difficulty in constructing law that is effective against a real mischief, but not effective against those who are entitled to the liberty to conduct their life as they see fit, without the interference of others.
I am surprised that we are returning to this subject so soon after the Sexual Offences Act 2003, which was intended to consolidate previous legislation in this area. That substantial Act dealt with and modernised several areas of law, and our colleagues who considered the Bill—indeed it was considered by the entire House—would have been aware of these issues and must have felt that the Bill’s measures were sufficient.
As is always the Liberal position on these matters, I have to ask whether there is an argument for banning something that is currently legal, however distasteful or inappropriate some might think it. If so, what is that argument? I am finding it difficult to discern the argument for the measures, which go beyond legislating against people coercing individuals into an activity against their will. Clearly, that should be and is an offence, particularly when children are involved. None of us wants to see a case in which a child is coerced to do such things. Neither do we want to see it with adults, and that is already illegal.
If the Government want to persuade us that the legislation is necessary, they must establish a degree of causation between what is to be banned and another illegal activity. The petition that has been mentioned was constructed on the basis that there is a causal relationship between such material and violence against women. Of course, anyone would be against it if that level of causation could be shown, but the evidence is extremely thin. If that causation exists, however, it must, as the hon. Member for Broxbourne said, apply to other violent images; it cannot be only violent images that are intended to produce sexual arousal that are causative agents of violent acts. If the Government were being consistent and believed that that causal link existed, they would extend the provision beyond what they propose, but it is difficult to establish that causation.
It is also difficult to establish that the measures will not have the consequence of making illegal activities and images that are currently legal. That might seem an obvious point—after all, why would one make a new offence if it merely restated current offences—but if that is the case, there is a genuine concern among a significant number of people. I have no idea what percentage of the population is interested in sado-masochistic behaviour, bondage, submission and domination, but a constituent of mine came to talk to me about this issue this summer when I was on my village tour. He came up to me at an obscure little village in my constituency, which I shall not name, and told me about the company that he runs from a lock-up garage in the village, which specialises in producing material for this kind of interest. It was quite a surprise to me; I had no idea that that might be the case, but he said that he had a lot of local customers, so there is obviously a market.
That brings me back to whether we are making something illegal for no sound reason related to the causing of other offences, particularly violent offences, and thereby depriving somebody of the liberty to do something that we as a group and others outside may not like but which does not constitute any problem for the rest of the community. My worry is that we are.
Having said that about the principle, there are also problems with the detail of the clause and how it will work. I have mentioned the limitation to violence in a sexual context rather than a general one, which is puzzling. What is the argument for providing that images should be made illegal but narrative should not, and that one cannot look at a picture but can read a story portraying the same thing in a much more graphic way—literally, in this instance—than a picture could? A story will describe in the imagination of the consumer exactly what is happening but will not be illegal or considered an obscene publication.
Why are we using the term “pornographic” in the clause rather than basing the language on existing legislation? Why are we introducing a new definition for the courts to decide on? A vagueness runs through the entire clause, which is difficult to construe legally. Much of it will have to be determined by a case being put before a court. That, too, is a problem for those who may wonder, “Is what I am doing illegal? Are these pictures that I have in my possession illegal? Should I destroy them as a consequence? Do they have a sufficient level of realism for me to be concerned, or can anybody see that they are staged?” The problem is that, even if they are not very real, they could fall foul of the clause. Even if we know perfectly well that no coercion was involved, and a couple engaged in activities of their own volition and by mutual consent, which they filmed themselves doing and watched later, they will find themselves falling foul of it. That cannot be the intention, even if we accept the arguments for the clause. There are so many areas of vagueness that will need further construction in the courts that we should be wary of accepting the clause in its present form.
We shall come to defences later, and I do not wish to stray from the amendments, but we must be careful not to create anything that approximates to an absolute offence. Intent is important, and an individual’s reasonable belief that what he or she is looking at does not fall foul of the law should be at the forefront of considerations.
I understand why the Minister has included the provisions, and I understand the perfectly proper pressure from some, considering that there are egregious internet sites and other places that promote violence against individuals. That worries me, whether or not it is done in a sexual context. Promoting violence against another individual is not what freedom of speech is intended to allow. However, the wording of the clause swings the pendulum too far the other way and will produce unexpected effects, putting people in a position of offending that they had never intended to be in, when they are not causing a problem to any other member of the community. There are big issues of the context of material and we ought to address those, too. I hope that the Minister will be able to deal with some of those matters today. However, the architecture of the provision as it stands simply cannot pass the tests that I am applying to it to make it an effective piece of legislation dealing with a real mischief, rather than a provision based on a view that something must be done about something that we do not like, but we are not quite sure what it is or what should be done.

Sally Keeble: I am glad to have a chance to contribute. I will be brief.
I do not support the amendments; I support the clause as originally drafted. I want to make a couple of comments following up the remarks of the hon. Member for Broxbourne, because the points that he made are important. The clause deals with extreme pornographic images—and understandably so. However, there is a much wider concern in society about the level of violence and the use of images to record violence, with those pictures passed around for all kinds of purposes. One thinks of happy-slapping pictures and pictures sent by e-mail and phone. There is a general concern in society that that is horrendous.
In an extraordinary case in Northampton, a gang of girls attacked another girl in a fast-food outlet. That was filmed and texted right round the world very quickly and there was outrage at what had happened. That picks up, as hon. Members have said, on an abhorrence at the level of violence in our society.
It is appropriate that we talk about this matter in domestic violence week. There is particular concern about attacks mostly on women, but also between people in a relationship of trust, where it is perhaps least expected. Although it is hard to legislate in this area, legislation has to try to keep pace with public opinion and public opinion is moving on violence and pictures of violence.
One has only to look at the debate on images of violence in a shop, which, if I heard Radio 4 properly this morning, the Advertising Standards Authority has taken action over because it found that one of the images was unacceptable for public use in an advert. I cannot recall such a debate having taking place previously about a picture showing a man hitting a woman. It is interesting that people are talking about images of violence and what is acceptable. There have been repeated attempts to look at outlawing happy-slapping in some way. That is an indication that public opinion is moving and, at some stage, we might have to look at that.
Perhaps my hon. Friend the Minister might deal with some of the issues that the hon. Member for Broxbourne outlined.

Edward Garnier: I thank hon. Members for their remarks this evening. There is evidently some difficulty, because what we are discussing, in terms of the amendment and the clause, ought not to be matters of personal opinion, but should be about how to alter the criminal law to afford protection to the people who are depicted or who may be victimised as a consequence of the making of a film.
Part 6 is interesting because it deals with extreme pornographic images, prostitution, the protection of nuclear facilities and penalties for breach of data protection, so it demonstrates the meccano-like nature of the Bill, if ever it needed to be demonstrated. I will not argue with any of the previous contributors about whether one should be free or not free to look at extreme pornographic images. We have had rather a dry discussion about whether clause 64 does the job that the Government—I assume—think it will do.
The first thing we must bear in mind is that the offence is not the production or the watching of extreme pornographic images, but their possession. That is the offence set out in clause 64(1). Let us compare that with clause 64(3) where “pornographic” is defined. It reads:
“An image is ‘pornographic’ if it appears to have been produced solely or principally for the purpose of sexual arousal.”
We will come on to discuss in a minute the difficulties over the use of the expression “appears to have” or “appears to be” which is found throughout the clause. An image could have been produced in identical form, but for different purposes. If I were to possess an extreme pornographic image which had been produced solely or principally for the purposes of sexual arousal, I would apparently be guilty, but if I produced exactly the same image, but it was not produced solely or principally for the purpose of sexual arousal, I would not be guilty of an offence. That is the first problem.
The second problem is encapsulated by the points made by the hon. Member for Leyton and Wanstead and is the subjective nature of the offence. To whom must it have appeared to have been produced solely or principally for the purposes of sexual arousal? Is it for the policemen or the vice squad who do the raid to decide that, even though they are hardened police officers who specialise in working in this area of criminal activity and are completely immune to it? I believe that there is department in New Scotland Yard where there are officers who spend eight hour shifts looking at this sort of stuff. One would have a different test if it was to be considered in the eyes of the man on the Clapham omnibus to have been produced solely or principally for the purposes of sexual arousal. There seems to be a problem that needs to be sorted out in addition to the difference between possession and production.
A little later in the clause one gets to the point that my hon. Friend the Member for Broxbourne raised in relation to the still and the moving film. Whereas one might be caught by the clause, the other probably is not. It strikes me, as one unpicks the clause, that it is riven with uncertainties, which will make its enforcement difficult. It will make its understanding by members of the public difficult and it will bring the law into disrepute to some extent.
I will not have an argument now about whether article 10 of the European convention on human rights is brought into play. I am sure that the Secretary of State spent many hours considering the terms of clause 64 and article 10. I have to assume that because he has rubber stamped it on the front of the Bill the provisions are compatible with the convention rights. I am not so sure about that, but there we are. He says it is and that is all we have to concern ourselves with for the moment.
Finally, I just want to attempt to give the hon. Member for Somerton and Frome some comfort. Proceedings for an offence under this section may not be instituted without the consent of the DPP. I hope that a sensible DPP, faced with a charge under this clause as currently drafted, would say, “No.” But we cannot guarantee that.

David Heath: That is the point. I agree with the hon. and learned Gentleman, but Joe Public has no way of understanding what the range of material for which people might be prosecuted could be and what the consequences for them could be. They are the ones who are left in the dark, however sensible the DPP at the time is.

Edward Garnier: I agree. I think I said that in rather fewer words earlier.

David Heath: There is no need to be like that.

Edward Garnier: I don’t think that I have told an untruth, although I am always grateful for the hon. Gentleman’s opinion.
The hon. Member for Leyton and Wanstead has drawn our attention to the criticisms of the subjectivity of the offences in clause 64. However, if he does not mind, I shall not go through each of his amendments—I trust that the arguments relate all of them.

Maria Eagle: This is an interesting, if increasingly tetchy debate. I hope that I can deal with some of the points raised. I shall have to say something about clause 64 as a whole, despite the fact that we are discussing the amendments tabled by my hon. Friend the Member for Leyton and Wanstead.
As the hon. and learned Member for Harborough pointed out, clause 64 creates a new offence of possession of extreme pornographic images. That is not an attempt to change the law or to extend or reduce the scope of the Obscene Publications Act 1959, but to create a new offence of possession, which is a serious step to take, as has been pointed out by a number of hon. Members—it was the basis of the point made by my hon. Friend the Member for Leyton and Wanstead. 
I realise that criminalising such things is a serious matter. However, we have taken that step after a long period of public consultation and discussion and in response to concerns about the increasing availability of the most disturbing types of violent and abusive pornographic material, particularly on the internet. My hon. Friend the Member for Northampton, North and the hon. Member for Broxbourne raised issues relating to extreme violence. However, at the moment, we are dealing with pornographic violence and abuse. I hear what hon. Members have said and, as my hon. Friend the Member for Leyton and Wanstead said, this debate is ongoing and perhaps increasing interest is being shown in it. No doubt that will continue; however, in the context of this Bill, I cannot say much more about it.
We believe that hardly any of the material being discussed is hosted in this country. Although the publishers could be prosecuted under the 1959 Act, it originates abroad and, therefore, those responsible are under another jurisdiction. However, a gap has opened up because of the huge technological developments over the last few years and in our ability to control such material. My right hon. Friend the Prime Minister recently announced a review looking at, among other things, how parents can protect their children from exposure to potentially harmful material on the internet. That is why we felt it necessary to take the serious step of criminalising possession of such images. 
I accept that that is a departure from the 1959 Act, which criminalises publication, but not possession. However, we are trying to deal with a technological change that means that publication takes place abroad—beyond our jurisdiction. Possession and downloading such images now equate to what would have been publication many years ago without this technology.

Charles Walker: On the point about such material originating overseas, what can we do, if anything, to penalise companies that host it on their websites, or search engines that allow people to access them?

Maria Eagle: There is a lot of activity going on, especially in relation to material that is obviously illegal in this country under the 1959 Act. However, there are always grey areas, which we cannot solve. There is a range of arrangements with internet service providers and website hosts to deal with material that clearly would fall foul of domestic law, and there is a lot of co-operation in that regard. Most internet service providers do not wish to be responsible for hosting illegal material, but wish to be responsible purveyors of services to the general public and to co-operate fully. They are, of course, concerned about our effectively targeting them rather than the producers or publishers.
A balance should be struck, but a lot of work goes on to try to ensure that illegal material is not available. Much of that material comes in from abroad and once it is taken down, it can be put up again fairly quickly, partly because of the nature of the internet, which is almost impossible to police with the degree of strictness that would be necessary completely to prevent such material appearing and then reappearing somewhere else if it is taken down. I am sure that many hon. Members have had experience of organisations such as Redwatch. My hon. Friend the Under-Secretary of State for the Home Department will know well how difficult it is to deal with unacceptable, illegal material on the internet that incites violence, as he has been tackling the issue.
The provision is not aimed at extending the Obscene Publications Act 1959 in any way or at extending our basic law beyond creating the possession offence, but it is necessary to create that as an offence because the technological changes are such that the 1959 Act cannot cope with the current reality. We do not seek to change the law in respect of what is obscene or pornographic, but we seek to enforce the current law. It is important that hon. Members remember that.
Introducing a measure that has implications for personal freedoms will always raise arguments about where the line should be drawn. We have set a high threshold for the offence, focusing on material that we believe is already illegal to publish. That is the point that I wish to make. It does not mean that all other material that does not fall into those categories is acceptable; people will have their own views about that, but we seek to enforce current law in the context of new technology.
In order for the offence to be made out, the material will have to appear to have been produced solely or principally for the purpose of sexual arousal. Where an image forms part of a series of images, the question whether it is pornographic will be determined by reference to the image itself and the context in which it appears, so an image that is part of a narrative, such as a mainstream or documentary film, may not be pornographic if viewed as part of a series of images which do not appear to be produced for the purpose of sexual arousal.

Edward Garnier: The hon. Lady is very kindly reading out the text of the Bill, but we want to know why it is in the shape that it is, and whether she can justify the use of the subjective clauses—I use the word in the grammatical rather than the statute sense—such as “it appears to have been”. We really need to know the answer to that. With respect, we can see what the Bill says, we just need to know why it says it.

Maria Eagle: I am glad that the hon. and learned Gentleman is in such a very good mood as the evening wears on. It is not even half-past 5 yet. I am trying, having heard from a number of hon. Members on the Committee, to deal with the point that has been raised, but in the context of setting out the offence and explaining why we have come to the view that we have. I have now probably forgotten what he was asking me.

Edward Garnier: I will repeat it while the hon. Lady looks through her notes. She was very kindly reading out subsections (3), (4) and (5); that was very good of her, but could she move forward in her notes to the justification by the Government for the use of the subjective term, “appears to have been” throughout the clause.

Edward O'Hara: Before the Minister replies, I have been following the debate quite closely and it is clearly one of those where it is difficult for the clause stand part debate not to be taken with the amendment. Therefore, I propose now, before we complete this debate, that clause stand part be dealt with formally.

Maria Eagle: I am grateful for that ruling, Mr. O’Hara. I apologise if I have strayed. It is difficult to deal with the amendments without doing so.
To move to the substance of the amendments, whether the scenes depicted in such images are real or not is an important matter. The amendments would limit the scope of the offence to images that could be proven to be real depictions of events that actually took place. Given that most of such material is hosted and produced abroad, it would be extremely difficult to prove that from this country. Indeed, the amendments would probably make the offence so difficult to prove that it would not be worth having it on the statute book.
We are trying to deal with the harm caused by the possession of extreme and abusive pornographic images. Perhaps the point made by the hon. Member for Somerton and Frome about causation and whether there is any harm is also important, although I am not saying that everybody would accept it. There is certainly controversy about causation—whether there is any and whether it can be proven. The Government held a rapid evidence assessment across the piece addressing the issue on the basis of the research that has been done. It supported
“the existence of some harmful effects from extreme pornography on some who access it”,
including
“increased risk of developing pro-rape attitudes, beliefs and behaviours and committing sexual offences...Although this was also true of some pornography which did not meet the extreme pornography threshold”.
Obviously, there are grey areas. It is always difficult, as I think everybody accepts, to be precise about where lines are drawn, but the REA
“showed that the effects of extreme pornography were more serious...Men who are predisposed to aggression, or have a history of sexual and other aggression, were more susceptible to the influence of extreme pornographic material.”
That is the harm that the clause seeks to tackle. There is controversy about the extent to which causation exists. It is difficult to draw lines. The offence is one of possession, which we have not had before, but it addresses some of the concerns.

Charles Walker: There is a debate about causation. I know that I am straying from the point slightly, but would the Government consider having a proper look at what link exists between violent images—both those that are pornographic and those that are purely violent—and violence and offending?

Edward O'Hara: Order. I do not think that the Minister is obliged to reply to that.

Maria Eagle: Thank you, Mr. O’Hara. I will write to the hon. Gentleman about what research is going on.
The offence focuses on the images and the effect that they may have on those who view them. That is where the controversy about evidence and causation come in, but we believe, based on what we know, that there is some link and some evidence of harm in some people. Concern arises whether the incident depicted in such an image is a real crime or behaviour, or is convincingly staged, and whether it is consensual. The Obscene Publications Act, which the offence is intended to underpin—it will bring up to date our capacity to enforce the existing law in the face of changing technology—is not limited in scope to material depicting real events or non-consensual activity.
I am not saying that any of this is easy. There is no doubt that trying to legislate on such matters is extremely difficult. I shall not argue that we have necessarily got it right. I am perfectly happy to reflect on any concerns that Members of the Committee have raised and to see whether we can improve the wording of the clause. Nevertheless, after a lot of effort, work and consultation, we believe that these matters are of sufficient concern to warrant legislation. On that basis, and on the basis of the explanations that I have given in respect of the amendments that my hon. Friend the Member for Leyton and Wanstead tabled—he may not agree with those explanations, but I hope that he understands the points that I made—I hope that he will withdraw his amendments and I also hope that the Committee will support clause 64 standing part.

Harry Cohen: I am grateful to the Minister; in fact, I am grateful to all the hon. Members who have taken part in this debate, which has been a good one. I acknowledge that the Minister has an extremely difficult brief, one that she cannot satisfy, and that it is difficult to frame legislation in this area that is right and proper and fair, and seen by everyone as fair. There is such a wide variety of views that it is unlikely that everyone will see any such legislation as being fair.
I am also grateful to the Minister for her acknowledgment that, with the new possession offence, the clause goes wider than the Obscene Publications Act 1959, which was a point made by Deborah Hyde of Backlash, whom I quoted.
I am still very concerned about the threshold that the Minister referred to. How is a person to know what that threshold is? I do not think that there is clarity about the threshold. It will affect adults, even adults whose behaviour is consensual. I understand her point about the words, “appears to”. As these images are hosted abroad, removing those words could almost render the clause ineffective. The way to deal with that problem is to put pressure on the internet service providers. Greater emphasis should have been placed on doing that than on creating legislation that could be much more of a catch-all. However, I welcome the Minister’s commitment to look at the clause again in the light of our debate.

Edward Garnier: I would like to ask the hon. Gentleman to extract from the Government a commitment to do something rather more than say, “We will look at it again,” because too often the Government say that they will look at a matter again in order to avoid a further debate and we never see it again.
It is really quite important that we get the clause right, because, as it is currently drafted, will cause more problems than it will solve, for many of the reasons that the hon. Gentleman set out in his earlier speech. I am not at all sure, and I hope that he is not at all sure either, that the Minister’s response to his arguments about the subjectivity issue has been adequate. When we finish this short debate, I urge him to urge the Minister to do something really quite radical, either on Report or in the other place, so that the Bill is produced in a sensible form. Otherwise, as I just said, the Bill will cause more trouble than it will solve.

Harry Cohen: I agree. The point of my tabling the amendment is that I think that this clause needs to be changed and I hope that it will be, either on Report or in another place, as the hon. and learned Gentleman suggests.
Having said that, I know that the Minister is a woman of integrity; when she says that she is going to look at the matter again I know that she will do so in the light of our debate. I hope that some changes that reflect that debate—I know that that is difficult, because different points were made in the debate—and that will improve the Bill will result.
I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 64 ordered to stand part of the Bill.

Clause 65

Exclusion of classified films etc.

Harry Cohen: I beg to move amendment No. 192, in clause 65, page 46, line 13, after ‘is’, insert—
‘(a) an image of an act to which all participants in the production have consented,
(b) an image the production of which involves fictional or staged acts performed by consenting actors,
(c) an image produced for the purpose of responsible education, or
(d) ’.
I am back on my feet again very quickly. In a way, this is much the same debate, but my amendment sets out issues that should not be caught up under the clause. It was also suggested by Backlash, but I shall not repeat its arguments. I have received a paper from Equity, which stated:
“Equity’s remit on this issue is limited to areas where the proposed changes may impact on the work of our members in the entertainment industry.
Specifically we are concerned that the current wording of clauses 64 and 65 could have the impact of criminalising the possession of extracts of mainstream certified films featuring our members.
This is due to the combination of a subjective judgement of whether the images ‘appears to’ have been produced for sexual arousal...whether it ‘appears to’ be an extreme image...and that extracts from classified films are not excluded...As members of the Standing Committee on the Bill have already been informed, even clips from mainstream films such as Casino Royale could become illegal if possessed and distributed in isolation. Therefore, while not wishing to dilute the intention of this proposal, Equity would be keen to ensure that the work of our members was not criminalised in this way.”
I shall not repeat the other arguments that have been expressed. Equity’s point is that people performing legitimately should not be criminalised.

Charles Walker: Does the hon. Gentleman not consider that it is a slight contradiction for an act to be obscene in one context, but not obscene in another context?

Harry Cohen: Well, we have had such a debate before, and there is a host of inconsistencies not least in the dreadful Longhurst case when the man was murderously deranged. He could easily have picked up committing such acts from watching classified horror films, which are 10 a penny all over the place. In a way, that is the point that the hon. Gentleman is making. Yet it is not covered by the Bill, so there is a problem. Moreover, such films are legitimate entertainment for the majority of people, more than 99 per cent. of whom would not copy any of the acts that they had seen performed. There are inconsistencies in the way in which issues have been dealt with under the Bill, but we have had that debate. I do not want to reiterate it. Such a point was well made by Liberty, too, in some of its representations. It said that some classified films and images could be caught.

Maria Eagle: The purpose of the amendment tabled by my hon. Friend the Member for Leyton and Wanstead is to exclude from the scope of the possession offence extreme pornographic images that depict participants who have all consented to the production of the image; extreme pornographic images, the production of which is fictional or staged; and extreme pornographic images that have been produced for educational purposes.
On the face of it, particularly in view of my hon. Friend’s earlier amendments, I understand what he is proposing. However, his amendment is problematic. As for fictional or staged acts under paragraph (b) of the amendment, there is considerable overlap with the amendments to clause 64 that we have already dealt with. The effect of the amendment would be to exclude from the offence an image that did not depict a real event. As I have explained, whether the events depicted are real is not, in the context of the offence that we have established under clause 64, the most important issue. That also applies to the amendments.
As for consent, to which reference is made under paragraphs (a) and (b) of the amendment, but most pertinent under paragraph (a), when the events will, by implication, be real, where an image reaches the thresholds to which I have referred in respect of its pornographic, extreme and convincing nature, we consider that it is right that it is caught by the offence, notwithstanding any consent on the part of the participants. Again, the offence is about the impact of the images, not the circumstances of their production. The impact of an image is not affected by whether the participants consented or whether the events depicted are real. The capacity for transmission of an image is not affected by whether it is real or whether there was consent. It is for those reasons that the Government do not consider that those things should be elements of the offence. The proposals concern material that we believe would already be illegal to publish and distribute in the UK under the Obscene Publications Act. That Act is not limited, as I said, to material that depicts real events or non-consensual activities.
Paragraph (c) of the amendment concerns educational material. Some groups produce material for educational purposes so that information about sexual activities that carry a risk of harm can be given in such a way as to enable those activities to be carried out safely. But the proposals cover images that meet the thresholds in terms of their pornographic extreme and convincing nature. It ought to be possible to produce educational material without breeching those thresholds. The thresholds are high, although I appreciate that the offence that we are creating is an offence of possession. I appreciate the hon. Gentleman’s concerns, but I do not believe that we can accept the amendment.
A point was made about how an image can fall foul of the offence in one context but not, say, if it appears in the middle of a film. Because of how we are defining the measure, the purposes for which the image is produced are significant. An image that is principally produced for sexual arousal would clearly and squarely fall within the offence. The scene in “Casino Royale”, which I have had described to me—[Interruption.] I should get out more; almost everybody else has seen it. There is no way, in the context of that movie, that the scene was produced principally or solely for the purpose of sexual arousal. I say that on the basis of the definitions that we currently have. I am not saying that I do not understand why those who criticise the definitions in the Bill will stand up and say, “How can it be? How can it be caught in this context and not in another—that’s not sensible?”, but the offence is to do with context. On that basis, I hope that my hon. Friend will withdraw the amendment, and I commend clause 65 to the Committee.

Harry Cohen: I am grateful to the Minister for that thorough reply. I have only one comment. On “Casino Royale”, if the Minister saw the whole film, she would be okay, but if she saw only the scene to which she referred, she could be accused of her own offence—or perhaps not. I do not wish to delay further the Committee, and I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 65 ordered to stand part of the Bill.

Clause 66

Defence

Question proposed, That the clause stand part of the Bill.

David Heath: I shall be very quick. Do I take it from the Minister’s comments on the previous clause—I think that I do—that she would not consider a further defence: that the person in question reasonably believed that no one portrayed in the image was made to act against his or her will? That was the nature of the amendment tabled by me and the hon. Member for Leyton and Wanstead, which unfortunately, was tabled too late to be selected for debate. We nevertheless feel that it is worth asking the Minister to respond.

Harry Cohen: I shall not keep the Committee for long, but Liberty has made the point that the burden of proof is unfairly on the defendant, including when the matter in question is highly subjective. Liberty argues that the burden of proof should be placed on the prosecution as far as possible, as is the case in the normal run of things for all sorts of offences. When my hon. Friend the Minister looks at this matter again, will she consider that point?

Edward Garnier: Before the hon. Gentleman intervened, I was going to ask the Minister what the Government meant by having a legitimate reason. Surely—this feeds into the point that the he made—it is for the prosecution to prove that the possessor of the image had no legitimate reason to possess it. That is the guts of the offence—the unlawful possession of an extreme pornographic image.

Maria Eagle: I will answer the latter point first. The hon. and learned Gentleman thought up one answer already when he referred to police officers in rooms looking at this material in the course of their job, with quite legitimate reasons to do so. That would be one example, and there may be others, but certainly there will be some people who need to look at this material for the purposes of law enforcement. There may be others who work for ISPs who operate filter systems that block this material coming from servers into their ISP, who also would have legitimate reasons for being in possession of such material. It is that kind of possession that we are seeking to deal with in the clause.
The clause sets out defences for a person charged with the offence of possession. It is not the intention of the Government to penalise people who may stumble across the material when using the internet or who have it sent to them without their consent, or to penalise those who need to possess it for a legitimate reason. The defences mirror arrangements that already exist for those charged in respect of the possession of indecent photographs of children under the Criminal Justice Act 1988.
On the points made by my hon. Friend the Member for Leyton and Wanstead and the hon. Member for Somerton and Frome—the relevant amendments tabled in their names were not called—I think that they both know the answer to those points, because we dealt with them in considering previous clauses. Providing the defence that the image was made by consenting couples or groups does not deal with the fact that we are trying to catch the harm caused by the images themselves and their impact on those who view them, rather than the impact on the participants, whether they participated because they wished to or because they were forced to. On that basis, I hope that the Committee will accept clause 66.

Clause 66 ordered to stand part of the Bill.

Clause 67

Penalties etc. for possession of extreme pornographic images

Maria Eagle: I beg to move amendment No. 211, in clause 67, page 47, line 40, leave out subsections (5) and (6).

Edward O'Hara: With this it will be convenient to discuss the following: Government amendments Nos. 243 and 218.
Government new clause 33—Special rules relating to providers of information society services.
Government new schedule 1—‘Special rules relating to providers of information society services.

Maria Eagle: Government amendments Nos. 211 and 243 are minor technical amendments to tidy up the Bill and clarify one matter relating to Northern Ireland. New schedule 1 replaces the provisions in subsections (5) and (6) of clause 67 that deal with registration requirements under part 2 of the Sexual Offences Act 2003. There is no change to the effect of the subsections, but transferring them to new schedule 1 is more consistent in terms of the overall structure of the Bill. One of the amendments also effects a clarification relating to Northern Ireland. New clause 33 and new schedule 1 ensure that the provisions that make illegal the possession of extreme pornographic material are consistent with the UK’s obligations under the e-commerce directive. I will provide further details if people are really anxious to learn more.

Amendment agreed to.

Clause 67, as amended, ordered to stand part of the Bill.

Clauses 68 and 69 ordered to stand part of the Bill.

Clause 70

Maximum penalty for publication etc. of obscene articles

Question proposed, That the clause stand part of the Bill.

Harry Cohen: I am sorry to delay proceedings, but I have come across an e-mail from a constituent on this issue. The clause will increase the maximum sentence for the publication of obscene articles from three years to five years. He writes:
“The Obscene Publications Act is rarely used but, when it is, defendants are invariably given a disproportionate sentence. I have evidence from several cases to support this claim. For example, in the well-known case of Stephane Perrin, he was sentenced to 30 months when found guilty of publishing a single obscene image. This change would have increased his sentence to nearly 5 years, a sentence reserved for crimes such as manslaughter, violent assault and drug dealing.
Current sentencing guidelines date back to the 1970s and there are no plans to review them.”
He then gives an example that predates video and the internet. The point is that the sentencing guideline is increasing the sentences without looking at comparisons across the board to see what would be appropriate in such cases.

Angela Eagle: The point here relates to the hierarchy of offences. The clause will increase the penalty for offences on indictment, under section 2 of the Obscene Publications Act 1959, from three years to five years. It is related to clauses 64 and 67, which make illegal the possession of a limited range of extreme pornographic material illegal. The maximum custodial sentence in that case is three years’ imprisonment. The Government are determined to act against publishers and distributors of such material where we can. That is a more serious offence than possession, so there needs to be a consistency in sentencing. I hope that that explanation satisfies my hon. Friend.

Clause 70 ordered to stand part of the Bill.

Sadiq Khan: I thank the officials of the Committee for their hard work and patience.
Further consideration adjourned.—[Mr. Khan.]

Adjourned accordingly at three minutes to Six o’clock till Tuesday 27 November at half-past Ten o’clock.